Delhi High Court

Rakesh Devi vs State Of Nct Of Delhi & Anr on 26 September, 2019

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Date of decision:26.09.2019
+    CRL.M.C. 4196/2017
      RAKESH DEVI                                      ..... Petitioner
                         Through:     Mr. Dharamraj Ohlan, Adv.

                         versus

      STATE OF NCT OF DELHI & ANR               ..... Respondents
                    Through: Mr. Kamal Kr. Ghei, APP for State
                              with Inspector Akshay Kumar and SI
                              Subhash Chandra, PS - S.P. Badli
                              Mr. Sumit Choudhary, Adv. for R-2
      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                         J U D G M E N T (ORAL)

1. Vide the present petition, the petitioner seeks directions for

cancellation of anticipatory bail of the accused/respondent no. 2 in FIR No.

549/2017 under Sections 304/308/34 IPC, Police Station - S.P. Badli,

granted vide order dated 18.09.2017 by the court of the learned A.S.J.,

Rohini, Delhi.

2. Brief facts of the case are that the crime scene has been recorded on

the CCTV camera. As per the CCTV footage, the deceased husband of the

petitioner/complainant had knocked on the gate of accused persons. The gate

was opened by the co-accused mother of respondent No. 2 and she started

talking to the deceased. Immediately thereafter, another co-accused Ravi

Rana came running from the street and knocked down the deceased. The

deceased could never get up thereafter.

3. Thereafter, Rajesh Rana (wearing blue shirt) came out of his house

with wooden logs/ lathis and was the first person to give a hard blow on the

head of the deceased followed by others. The petitioner, who is wife of the

deceased tried to save her husband but she was also assaulted repeatedly by

all the accused persons.

4. The petitioner was also pulled away by the respondent no.2 to

facilitate the other accused to hit the deceased while he was lying on the

ground in unconscious state. The respondent no.2 was the first to land hard

blows with lathi on the deceased. The accused persons kept on assaulting

the deceased on his head and body continuously even after he became

unconscious for about 15 minutes.

5. The deceased was admitted to Ambedkar Hospital on 30.06.2017 in

unconscious state and on the next day he was shifted to Brahm Shakti

Sanjivani Super Specialty Hospital, Bahadurgarh. He remained in an

unconscious state and on ventilator support till he succumbed to his injuries

on 07.07.2017 at 12:26 A.M. The injuries upon the deceased are directly

related to the death of the deceased and hence, Section 302 IPC was added.

6. Learned counsel appearing on behalf of the petitioner submits that the

police in connivance with the accused persons fraudulently inducted section

304 IPC instead of 302 IPC to facilitate the granting of bails, and hence

succeeded in getting anticipatory bail for respondent no.2.

7. Subsequent to grant of anticipatory bail, charge sheet has been filed

under Sections 302/307/34 IPC. He further submits that the accused persons

were assaulting the deceased, while he was lying unconscious on the ground.

The petitioner in the process of trying to save her husband from the accused,

laid down upon the deceased. The accused persons with the intention to kill

the petitioner also caused serious injuries and fractures. In the process to

save her head, she put her hands on her head and resultantly the petitioner

sustained severe injuries on her hands and sustained three fractures.

Thereafter, the petitioner could not raise her hands to protect herself from

the subsequent blows and therefore, sustained two severe injuries on her

head also. The petitioner got operated upon her right arm elbow and a rod

has been fixed there.

8. Learned counsel appearing on behalf the respondent No. 2/ accused

submits that the deceased first assaulted Ravi Rana and thereafter, he went

to their house and knocked at the door. Thereafter, a scuffle took place

between the mother of the respondent No. 2 and the deceased.

Consequently, Ravi Rana and Rajesh Rana, both brothers came and scuffled

with the deceased. He further submits that it's a case of grave provocation

resulting from the injury caused to Ravi Rana, brother of the accused

(Rajesh Rana), due to the earlier assault on him by the deceased, thus the

police rightly charged the accused under Section 304 IPC.

9. He further submits that the Trial Court after considering all these facts

had granted anticipatory bail to the accused - Rajesh Rana.

10. On perusal of the impugned order dated 18.09.2017, passed by the

learned Additional Sessions Judge, only contention of the learned counsel

for applicant / accused has been recorded, which is reiterated as under :

"It is contended by Ld Counsel for the applicant that applicant has apprehension of arrest in this false case. It Is further contended that from the perusal of CCTV footage it would be crystal clear that the applicant was not carrying any danda with him rather he was intervening between his parents and uncle to be peaceful. It is further contended that from the CCTV footage, it is clear that there is one witness namely Tej Singh, who saw the whole Incident and whose statement has been recorded and in his statement, he has not stated anything against the applicant. It is further contended that complainant and her husband want to grab the property of the applicant and his family in regard to which 4-5 civil cases are pending between the complainant and co-accused persons."

11. Upon hearing the learned counsel for the applicant/ accused, the

learned ASJ has passed the order as under:

"Considering the above facts and circumstances and the fact that nothing has to be effected from the possession of applicant, accordingly, in the event of arrest, accused Rajesh Rana, be admitted to bail on his furnishing personal bond in the sum of ₹50,000/- with one surety in the like amount, to the satisfaction of concerned SHO/IO concerned."

12. Thus, there is no reasoning of the learned Judge as to on what basis

the anticipatory bail has been granted to the respondent No. 2.

13. In case of State of Orissa vs. Mahimananda Mishra, (2018) 10 SCC

516, the Hon'ble Supreme Court held as under:

" 12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the accused, it is open for this Court to set aside the order of the High Court, where it is apparent that the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail. (See the judgment of this Court in Neeru Yadav v. State of U.P. and Prasanta Kumar Sarkar v. Ashis Chatterjee). It is by now well settled that at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the courts as well as the criminal antecedents of the accused. It is also well settled

that the Court must not go deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the accused. [See the judgment of this Court in Anil Kumar Yadav v. State (NCT) of Delhi.]"

14. This Court, for its satisfaction has played the CD of the incident on

the desktop of the Court and the incident was seen in the presence of the

advocates appearing on behalf of the parties.

15. In the incident, Ravi Rana, who was wearing checked shirt, firstly

attacked the deceased and immediately thereafter he was followed by Rajesh

Rana(Respondent No.2 herein), wearing blue shirt, who hit the deceased

with a danda. Thereafter, the deceased fell down and then another accused

assaulted him brutally even though there was no movement of the deceased.

16. In such a situation, I fail to understand how the police has initially

added Section 304 IPC whereas on the date of granting anticipatory to the

respondent No. 2, the deceased had already expired. This fact was not

brought to the notice of the Court which is evident from the order of the