Om Prakash @ Pandey vs The State ( Nct Of Delhi)
2016 Latest Caselaw 587 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Judgment delivered on : January 27, 2016
+     BAIL APPLN. 2564/2015
      OM PRAKASH @ PANDEY                                 ..... Petitioner
                          Through       Mr.Gaurav Sharma, Adv.

                          versus

      THE STATE ( NCT OF DELHI)                ..... Respondent
                    Through   Mr.Amit Chadha, APP with SI Uma
                              Dutt, PS Mangol Puri.

                                      AND

+     BAIL APPLN. 2379/2015
      SUBHANG @ SUBHANKAR                                 ..... Petitioner
                          Through       Mr.Rakesh Kumar Sharma, Adv.

                          versus

      THE STATE ( NCT OF DELHI)                ..... Respondent
                    Through   Mr.Amit Chadha, APP with SI Uma
                              Dutta, PS Mangol Puri.

      CORAM:
      HON'BLE MR. JUSTICE P.S.TEJI

                                     JUDGMENT

P.S.TEJI, J.

1. By this common order I propose to dispose of the aforesaid two

petitions filed under Section 439 of Code of Criminal Procedure, 1973

(hereinafter referred to as the Cr. P.C.), wherein the petitioner - Om

Prakash was initially charged with the offence punishable under

Section 365 of Indian Penal Code (hereinafter referred to as 'ÍPC')

vide FIR No. 2306/14 registered at Police Station Mangolpuri, Delhi

and the petitioner - Subhang @ Subhankar was charged with the

offence punishable under Section 279/304A of IPC vide FIR No.

1566/14 registered at Police Station Narela, Delhi. Ultimately, both

the FIRs were clubbed together and the charge sheet was filed under

Section 364/302/34 of IPC against the accused persons and the both

the petitioners were charged with the offences punishable under

Section 302/34 of IPC. Accused Om Prakash @ Pandey was also

charged for the offence punishable under Section 364 IPC.

2. The facts of two incidents made a chain for consolidating the

two registered FIRs into one trial. In brief, the prosecution case is as

under:-

"On 05.12.2014, Smt. Kamla, mother of one Manoj (since deceased) lodged a missing report of his son Manoj vide DD No.11B with Police Station Mangol Puri, Delhi, and accordingly FIR No. 2306/2014 under Section 365 IPC was registered. On 15.12.2014, Shri Mohan Lal, father of the

deceased Manoj had given a statement to the police suspecting the role of the petitioner - Om Parkash @ Pandey in the kidnapping of his son and hiding him at some unkown place. Simultaneously, on 05.12.2014 upon an information regarding an injured person lying at Mansha Devi Road, Near Singhu Border, Narela Road, Narela, Delhi, another FIR 1566/2014 under Section 279/304A of IPC was recorded in Police Station Narela. After the demise of the injured - Manoj, the petitioner - Om Parkash @ Pandey was arrested.

As per prosecution, the petitioner - Om Parkash @ Pandey was last seen with the deceased by one Smt. Padma at Mangol Puri.

Upon disclosure statement of petitioner - Om Parkash @ Pandey, two co-accused persons namely Bhavnesh @ Bhima and Subhang @ Subhankaran were also arrested.

During investigation, recovery of weapon of offence, being plug pana was recovered from the petitioner - Om Parkash @ Pandey and a knife was recovered at the instance of petitioner - Subhang @ Subhankar from the Railway Fatak.

Post Mortem Report of deceased Manoj was conducted and the body was found with two incised wound on his person which were caused by sharp edged weapon and one reddish colour bruise on the left side of the forehead of the deceased and the said forehead injury, consequent upon blunt force impact to the head, was opined to be

sufficient to cause death in ordinary course of nature."

3. Let us first deal with the petition filed by the petitioner - Om

Parkash @ Pandey.

4. Mr. Gaurav Sharma, counsel appearing for the petitioner

vehemently argued the case and contended that there is no

incriminating evidence against the petitioner - Om Parkash @ Pandey

and he has been charged for the offence punishable under Section 365

IPC only on the mere suspicion raised by the father of deceased on

15.12.2014. As regards the prosecution witness - Smt. Padma, it is

contended that she has been fabricated by the prosecution as a last

seen evidence, who had stated in her statement that she had last seen

the present accused with the deceased in Mangolpuri. It is further

contended that the said witness - Smt. Padma has made

representations to the higher police officers stating that she had never

seen the petitioner with the deceased on 04.12.2014. It is further

contended that the Investigating Officer had recorded the statement of

other family members of the deceased only after recovery of dead

body of the deceased Manoj and upon coming to know about the

registration of FIR No. 1566/2014 under Section 279/304A of IPC,

Police Station Narela, Delhi. To buttress his argument, counsel for the

petitioner submitted that no witness had stated that the present

petitioner was seen with the deceased, talking to him or kidnapping

him. Counsel for the petitioner further argued that the recovery of a

car and plug pana from the petitioner is false and fabricated as the

same was recovered in a park in Gurgaon, which is hit under Section

166 of Cr. P.C. Absence of ingredients of Section 302/365 IPC has

also been urged. It is further argued that the petitioner is a permanent

resident of Delhi and runs a workshop for repairing vehicles to earn

his livelihood.

5. On the other hand, Mr. Rakesh Kumar Sharma, counsel for the

petitioner - Subhang @ Subhankar contended that the petitioner has

been falsely implicated by the police officials of Police Station

Mangolpuri, Delhi on the basis of disclosure statement of co-accused

Om Prakash @ Pandey. On the point of recovery, counsel for

petitioner - Subhang @ Subhankar submitted that the knife was

recovered after three months of the incident from an open place which

is accessible to public i.e. near Railway Fatak. Counsel for the

petitioner - Subhang @ Subhankar contended that the prosecution has

registered the case against the petitioner on the basis of circumstantial

evidence and the chain of events is not properly connected. It is

submitted that the dead body of the deceased was found on the road

side and the FIR No. 1566/2014 under Section 279/304A of IPC was

registered at Police Station Narela, Delhi on 05.12.2014. Counsel

further submitted that as per observation of Dr. Rajesh Kumar in the

MLC No.3958 of unknown person on 05.12.2014, it was his opinion

that no injury was caused by a sharp edge weapon and such injuries

can be caused in a Road Transport Accident. It is further contended

that the dead body of the deceased was disposed of without

identification by closed relatives though both the FIRs are registered

in the same District under the jurisdiction of the same Deputy

Commission of Police i.e. Outer District and no scientific samples

were preserved as the post mortem was conducted on the basis of FIR

No. =, treating it as a road side accident. On the point of weapon of

offence, it is argued that the same was not sent to the laboratory as the

recovery is a planted one and the same is not connected to the injury

of the deceased. Counsel for petitioner - Subhang @ Subhankar

further urged that there is no eye witness and no last seen witness

against the petitioner. In a case based on circumstantial evidence, the

'motive' has a prime role and the prosecution has not succeeded in

disclosing any motive or intention to kill the deceased. Lastly, it is

contended that the petitioner is a permanent resident of Delhi and

there is no chance of his absconding or tampering with the

prosecution evidence.

6. To represent the prosecution case, Mr. Amit Chadha,

Additional Public Prosecutor vehemently opposed the contentions

raised by counsel for the petitioners. It is submitted that the petitioner

- Om Parkash @ Pandey has himself disclosed about his involvement

in the commission of the said crime and not only this, he has also

disclosed the names of his associates - Shubhang @ Shubhankar and

one Bhuvnesh. It is only thereafter that all the three accused were

arrested on the same day, i.e. 15.03.2015. Learned Additional Public

Prosecutor for the State has also submitted that as per the Post

Mortem Report, the deceased Manoj was found having two incised

wounds on his person which were caused by a sharp edged weapon

besides head injury and the weapon of offence, i.e., a knife was

recovered at the instance of petitioner - Shubhang @ Shubhankar and

in subsequent opinion, the Autopsy Surgeon opined that the injuries

found on the person of deceased Manoj were possible with the knife

recovered at the instance of the petitioner- Shubhang @ Shubhankar.

7. As regards, petitioner - Om Parkash @ Pandey, learned

Additional Public Prosecutor for the State submitted that during

investigation, it was revealed that he wanted to grab the house of his

sister-Nathi situated at Dausa, Rajasthan but he was not able to do so

because Manoj was residing in the said house. Thus, he hatched a plan

to kill Manoj and he got the chance to execute his plan on 01.12.2014

when all the family members including Manoj and Om Prakash

gathered together on the occasion of marriage of Rajni, cousin sister

of the deceased Manoj and niece of accused - Om Prakash. There is

also a recovery of weapon of offence, i.e. Tyre Panna with the help of

which deceased was attacked and the car in which deceased was taken

at the instance of Petitioner - Om Parkash @ Pandey. It is further

submitted that the Autopsy Surgeon opined that the injuries found on

the forehead of deceased Manoj were possible with the Tyre Panna

recovered at the instance of petitioner.

8. Learned Additional Public Prosecutor for the State further

submitted that the charge sheet was filed under Section 364/302/34 of

IPC against all the accused and finally both the petitioners have been

charged under Section 302/34 of IPC vide order dated 06.10.2015,

apart from accused Om Prakash @ Pandey who was also charged for

the offence punishable under Section 364 IPC. It is further argued

that both the petitioners have been charged with the serious offence

and in the facts and circumstances of the present case, the petitions

filed by the petitioners deserve to be dismissed.

9. I have heard the arguments on behalf of both the petitioners and

also the submissions made by learned Additional Public Prosecutor

for the State.

10. After careful perusal of the record of this case and the facts and

circumstances of the present case, this Court notes that initially the

case was registered under Section 365 of IPC against an unknown

person but later on father of deceased Manoj, raised a suspicion on

petitioner - Om Parkash @ Pandey. Simultaneously, another FIR

under Section 279/304A of IPC vide FIR No. 1566/14 was registered

at Police Station Narela, Delhi, which was later on clubbed with the

FIR No. 2306/2014 and during investigation, petitioner - Om Parkash

@ Pandey had himself disclosed about his involvement in the

commission of crime and not only this, he also disclosed the names of

his associates - Shubhang @ Shubhankar and one Bhuvnesh. After

conclusion of investigation, the charge sheet was filed under Section

364/302/34 of IPC against all the accused and finally the petitioners

were charged with the offence punishable under Section 302/34 of

IPC vide order dated 06.10.2015. Accused Om Prakash @ Pandey

was also charged for the offence punishable under Section 364 IPC.

11. This Court also records that there is recovery of a plug panna at

the instance of petitioner - Om Parkash @ Pandey and a knife at the

instance of petitioner - Subhang @ Subhankar. So far as the motive

part is concerned, during investigation, the status report filed on

behalf of the State clearly revealed that the deceased Manoj was

residing at the house of his mausi namely Nathi at Dausa, Rajasthan

and petitioner - Om Parkash @ Pandey wanted to grab the house of

his sister but due to the fact that the deceased Manoj was in

possession of the said house, he hatched a plan to kill Manoj.

12. In light of the aforesaid facts and circumstances, recoveries

effected from both the petitioners at their own instance and the motive

of petitioner - Om Parkash @ Pandey to grab the house of his sister

Nathi are self sufficient and this Court need not to go into the facts of

the case, as the same are subject matter of trial.

13. In view of the aforesaid discussion, this Court is of the opinion

that the petitioner - Om Parkash @ Pandey and petitioner - Subhang

@ Subhankar do not deserve the concession of bail in this case,

especially when the petitioners are charged with the serious offence,

under Section 302/34 of IPC apart from charge under Section 364 IPC

against accused Om Parkash @ Pandey, at this stage. Accordingly, the

present petitions filed by the petitioner - Om Parkash @ Pandey and

petitioner - Subhang @ Subhankar are dismissed at this stage.

14. Before parting with this order, it is made clear that the

expression of any opinion made hereinbefore shall not have any

bearing on the merits of the case.

15. In view of the aforesaid observations, both the petitions stand

disposed of.

(P.S.TEJI) JUDGE JANUARY 27, 2016 pkb