Delhi High Court

Ajay & Anr. vs The State (Govt. Of Nct Of Delhi) on 15 November, 2019

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
                      Judgment reserved on: 31.10.2019
                       Judgment delivered on 15.11.2019
+      BAIL APPLN. 2195/2019
       AJAY & ANR.                                    ..... Petitioner
                           Through:     Mr. Jatan Singh, Advocate.

                           versus
       THE STATE GOVT OF NCT OF DELHI ..... Respondent
                           Through      Ms. Neelam Sharma,
                                        APP for State along with Insp
                                        Gulshan Nagpal, PS Sultan Puri

       CORAM:
       HON'BLE MR. JUSTICE BRIJESH SETHI

                               JUDGMENT

BRIJESH SETHI, J.

1. Vide this order I shall dispose of the bail application filed by the

petitioners Ajay and Sagar @ Kaku in FIR No. 891/2018 u/s.

302/323/34 IPC, P.S. Sultanpuri.

2. Ld. Counsel for the petitioner has prayed for bail on the ground

that petitioner is innocent and has been falsely implicated. It is

submitted that subject matter FIR was registered on the statement of

one Jitender @ Golu, who has alleged that on the intervening night

of 7 -8 November, 2018, at around 3.30am, while he alongwith his

friend Yogesh (since deceased) was returning to his house, they had

met the petitioners and the petitioners had caught hold of Yogesh. It is

further alleged that few days ago Yogesh had beaten petitioner Ajay

and due to this the petitioners had started beating Yogesh. Petitioner

Ajay had attacked Yogesh with his knife, due to which he had started

bleeding and fell on the ground. Petitioners were arrested on

08.11.2018 and after completion of investigation, Chargesheet was

filed in the court. The petitioners had moved an application u/s 439

CrPC seeking regular bail before the Ld. Trial Court which was

dismissed by the Ld. Trial Court vide order dated 08.08.2019.

3. It is submitted that both the petitioners are aged about 22 years

and are not involved in the present case and they have been falsely

implicated by the police officials of PS Sultanpuri when they failed to

catch the real culprits.

4. It is further submitted according to the Prosecution, the

complainant namely Jitender @ Golu was the eye witness to the

alleged incident. The said witness has already been examined and

cross examined before the Ld. Trial Court as PW-3 and he has not

supported the case of the prosecution and during his testimony nothing

incriminating has come on record against the Petitioners. Moreover,

there are no public witnesses and only Police/Official/Formal

witnesses remain to be examined, thus there is no probability of the

petitioners influencing or tampering with the evidence.

5. It is submitted that on two previous occasions i.e. on 15.05.2019

and 11.07.2019, the Ld. Trial Court had granted interim bail to the

petitioners for two months each. The petitioners are in judicial custody

since 08.11.2018 and the investigation qua them has already been

completed and they are not required for further custodial investigation

and it is, therefore, prayed that both the petitioners i.e. Ajay and Sagar

@ Kaku be released on bail.

6. Ld. APP for the state has opposed the bail application on the

ground that allegations against the petitioners are serious in nature.

Petitioners are involved in a heinous offence of murder. Ld. APP has

submitted that evidence of the prosecution witnesses cannot be

appreciated at the stage of bail. He has, therefore prayed for dismissal

of the bail application.

7. Learned Counsel for the petitioner has relied upon following

case law in support of his contentions:-

i) Sumer Singh vs. State, MANU/DE/8470/2007

ii) Maulana Mohd. Amir Rashadi vs. State of U.P. and Ors.

8. I have gone through the above case law. There is no quarrel

with the proposition of law laid down therein. However, these

authorities are distinguishable on the basis of facts and circumstances

stated therein. Moreover, it is a settled law that while granting bail, the

court has to keep in mind the nature of accusation, the nature of

evidence in support thereof, the severity of the punishment which

conviction will entail, the character of the accused, the circumstances

which are peculiar to the accused, his role and involvement in the

offence, his involvement in other cases and reasonable apprehension

of the witnesses being threatened and tampered with. Thus, the above

factors must be taken into account while considering the bail

application.

9. Present case has been registered on the complaint of one

Jitender @ Golu. On the intervening night of 07/08.11.2018, he had

met Inspector Vipin Kumar, PS Sultan Puri who was on patrolling

duty along with staff and told that the petitioners Ajay and Sagar @

Kaku had murdered his friend Yogesh. On this information, Inspector

Vipin Kumar along with staff and complainant had reached in front of

A-3/378, Sultanpuri, Delhi where the blood was found scattered at the

spot and a white cap and a knife was also found on the spot. On

search, the dead body of Yogesh S/O Ramesh Kumar R/O F-684-85,

Sultan Puri Delhi was found in the drain having stab wounds. The

crime team was called on the spot, scene was photographed and

inspected. The exhibits were lifted from the spot (blood, blood stained

earth control, Earth control, blood stained knife and white color cap)

through seizure memos. The dead body got preserved to SGM

Hospital and Inspector Vipin Kumar, ATO PS Sultanpuri also

recorded the statement of complainant Jitendra @ Golu who

specifically mentioned the name and roles of the petitioners regarding

commission of the offence. The complainant was medically examined

and his clothes were also seized as these were having blood stains.

During the investigation, the petitioners were arrested at the instance

of complainant and they pointed out the place of occurrence

separately. The petitioners got recovered their bloodstained chappals

and a knife was recovered at the instance of petitioner Ajay. The FSL

Report regarding various exhibits was received. The FSL Expert

opined that the DNA profile generated from the source of exhibit '5'

(Gauze cloth piece of deceased) is similar with the DNA profile

generated from the source of exhibit 'I' (knife from the spot), exhibit

'7' (chappal from the accused Ajay), exhibit '8' (chappal from the

accused Sagar), and exhibit '10' (clothes of the complainant Jitender

@ Golu) and thus, prima facie there is scientific evidence on record

against the petitioners. According to petitioner, the blood of deceased

was not only found on the knife recovered from the spot but also on

the chappals of both petitioners as well as on the clothes of the

complainant.

10. Out of total 26 witnesses in the case only 11 witnesses have

been examined and PWs regarding recovery of blood stained

chappals, knife etc. are yet to examined. It is a settled law that

evidence cannot be discussed at the stage of consideration of bail

application. The Ld. Trial Court will discuss the same at the

appropriate time. However, on the submission of Ld. Counsel for the

petitioner that no incriminating evidence is on record against the

petitioners, this Court is compelled to refer to the status report filed by

the Ld. APP wherein it is stated that apart from the evidence of PW-3,

other scientific evidence i.e. forensic as well as medical evidence is

available on record which prima facie links the petitioner with the

crime. In the opinion of this Court, the evidentiary value of the same

has to be considered by the Court at the appropriate stage. This Court

has, however, observed another disturbing allegation leveled against

the petitioners. It is alleged that threat was extended to PW-5, who is

the mother of deceased. She has also deposed regarding the said threat

in her examination in chief, which runs as under;

"After the murder of my son Yogesh, some persons had visited my house and threatened me to withdraw my case and they further said that they had won over witness Golu @ Jitender and Golu @ Jitender will tender his evidence in their favour and our case was very weak.

11. It may be noted that PW-5, mother of the deceased had also

made a complaint, Ex.PW5/A, to the SHO, PS Sultanpuri, on

02.01.2019 regarding threat given to her regarding winning over of the

eye-witness Jitender @ Golu. Later on, the complaint of the mother of

the deceased (PW5), that the witnesses are being threatened seems to

have proved to be true to the extent that the PW-3 has become hostile

during his examination in court. As stated above, it is not the proper

stage to discuss the evidence and evaluate the same in detail as this

will either prejudice the case of the petitioner or the case of the

prosecution. At this stage, it is sufficient to observe that in view of the

fact that threat was extended to the mother of the deceased on behalf

of petitioners and further in view of the fact that there is other