Delhi High Court

Akshay Kanotra vs State on 7 May, 2021

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 29.04.2021
                                         Pronounced on: 07.05.2021
+     BAIL APPLN. 1236/2021
      AKSHAY KANOTRA                                    ..... Petitioner
                  Through:             Mr. Manu Sharma, Mr. Kartik
                                       Khanna, Mr.Vijay Singh &
                                       Mr.Abhyuday Sharma, Advocates
                          Versus

      STATE                                               ..... Respondent
                          Through:     Mr.Amit Chadha, Additional Public
                                       Prosecutor for State with SI Ashok
                                       Ahlawat & SI Hemant

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          JUDGMENT

1. Petitioner is in judicial custody since his arrest on 27.02.2018. He has

been charged for the offences under Sections 307/328/364/379 IPC by the

learned trial court in FIR No. 89/2018, registered at police station Vikas

Puri, New Delhi and is facing trial for the same.

2. Petitioner has approached this Court seeking bail while claiming that

he has been falsely implicated and no offence as alleged, is made out against

him. Further ground taken is that main charge sheet as well as

supplementary charge sheet in this case have been filed, which casts a doubt

on the involvement of petitioner in the instant case.

3. The present case has been registered on the statement of

injured/complainant - Rahul Malik. In his complaint, he has stated that he is

working as Property Dealer and he knew petitioner/accused since his school

days, who was working as Agent for purchase and sale of second hand cars.

Transaction of money between the two was common and as such, he had

lent Rs.7.00 Lacs to the petitioner. Further stated in the complaint that on

25.02. 2018 he received two three calls from the petitioner saying that

petitioner had received amount of Rs.2.5 Lacs in his account and wanted to

return to him. Since complainant /injured had to go to Green Park to collect

his payment from one Panna Lal, he asked petitioner to accompany him.

They both went together and on the way, petitioner offered him maaza

drink, which he had bought from a pan shop and after some time,

injured/complainant's head started spinning badly and he got into semi-

conscious stage. Petitioner offered to drive home and asked

injured/complainant to sit on conductor seat. After some time, when

injured/complainant gained consciousness, he found himself in a deserted

place and realized that petitioner was attacking him with a paper cutter kind

knife on his neck. According to injured/complainant, he tried to handle

himself but petitioner made a second attempt to strike cutter on his neck and

while he tried to defend himself by putting his left hand forward, petitioner

hit the cutter in his hand. Thereafter, petitioner tried to hit him on his head

with a stick kept in the car but injured/complainant opened the door of the

car and started running on the road. Petitioner again attempted to hit

injured/complainant with a stone but he escaped and ran towards the road

and asked the men standing on the road to call the police and ambulance.

4. As per the prosecution, Constable Sandeep took the

injured/complainant to U.K. Nursing Home and public standing on the spot

informed that the vehicle of the injured was parked at Chanson Motors near

Keshopur Industrial Area and the injured himself had come running. HC and

SI reached there and found one Maruti Swift White Colour car bearing No.

DL 2C AS 9332. There were blood stains on the top of the vehicle and the

conductor seat was in rest position. A paper cutter with blood stains was

found lying on the rear seat. Upon further inspection of car, neither amount

nor any bag of papers nor mobile of injured could be found. Two bottles of

petrol were found lying inside the car. A sample was also drawn from the

blood-stained seat of the car as also from the gear of the car.

5. Other team members of the police team, shifted the

injured/complainant from U.K.Nursing Home to Mata Chanan Devi

Hospital and further to Venketeshwar Hospital, Dwarka, where his MLC

was prepared. Thereafter, statement of injured was recorded and the FIR in

question was registered. The blood-stained clothes of the injured and the

samples drawn were sent to Forensic Science Laboratory (FSL).

6. Petitioner/accused was arrested on 27.02.2018 and his disclosure

statement was recorded on 27.02.2018, wherein he stated that he had

borrowed Rs.7.00 Lacs from complainant/injured- Rahul Malik and since he

used to embarrass him time and again, he planned to eliminate him and that

is why the incident had happened. As per prosecution case,

petitioner/accused had also disclosed that after the alleged incident, he had

handed over the bag containing money and mobile phone to his brother

Ankit Kanotra.

7. Further investigation in this case was carried out and charge sheet for

the offences under Sections 307/328/392/397 IPC was filed before the trial

court against the petitioner. Vide order dated 03.10.2018, charge under

Sections 307/328/364/379 IPC was framed against him and matter

proceeded for trial. Upon receipt of two FSL reports, supplementary charge

sheet was filed in this case on 28.06.2019.

8. The petitioner has primarily challenged the case of prosecution on the

ground that the allegation of injured/complainant that petitioner had made

him drink maaza cold drink having sedatives is disproved in the view of

FSL report No. FSL/2018/ B- 3753 dated 11.06.2019, which establishes

relevant para of which relied upon reads as under:-

"On Chemical, Microscopic & TLC examination: Metallic poisons, ethyl and methyl alcohol, cyanide, phosphide, alkaloids, barbiturates, tranquillizers and pesticide could not be detected in exhibits S1a, S1b, S1c, S1d, S1e, S1f, S2, S3a, S3b, S4a & S-5."

9. At the hearing, Mr. Manu Sharma, learned counsel for petitioner

submitted that even in the MLC of the injured/complainant, which was

prepared within 1½ hours of the alleged incident, does not mention any

symptoms or influence of sedatives upon the injured/complainant. He next

submitted that there is undue delay in obtaining the MLC and why the

injured was made to shift from one hospital to another and to the third and

why his father, who was present throughout, has not been made a witness to

the case, casts a doubt upon the prosecution case. He submitted that in view

of lack of scientific and medical evidence, charge under Section 328 IPC

cannot sustain against the petitioner.

10. Learned counsel also submitted that the allegations are of

injured/complainant having received severe injuries on his neck, still he was

discharged from the hospital the very next day and this also casts a doubt

upon the medical examination of the petitioner.

11. Further submitted that the assertion of injured/complainant having

cash of Rs.2,71,500/- and a bag of documents in the car, is baseless as

nothing has been recovered at the instance of petitioner and therefore,

charge under Section 379 IPC, cannot be invoked against him. In support of

this submission, learned counsel relied upon testimony of Panna Lal (PW-4)

recorded on 28.01.2020, who in his cross examination has specifically stated

that Rahul Malik (injured/complainant) remained seated in his car when he

met him on 25.02.2018 and categorically denied having seen any danda,

bag, petrol bottle, diesel bottle, kerosine bottle, paper cutter or bag inside the

car.

12. Learned counsel for petitioner also drew attention of this Court to

testimony of injured/complainant to show various contradictions and that he

is not a reliable witness. He submitted that in view of material contradictions

in the testimonies of material witnesses i.e. the injured/complainant and

Panna Lal (PW-4), charge under Section 364 IPC is not sustainable.

13. Attention of this Court was also drawn to the testimony of Dr. Vinay

Gupta (PW-5) wherein he has stated that injuries could be self-inflicted and

has also stated that the depth of the wounds of injured/complainant were not

exactly measured but were rather a "measure of guess" and therefore, it

casts a doubt upon the entire prosecution story.

14. Learned counsel further submitted that no witness has been cited to

prove that the maaza and petrol bottle were purchased by the petitioner. It

was also submitted that the prosecution has not produced any fingerprint

evidence to show that the alleged paper blade used during the incident was

used by the petitioner.

15. Learned counsel submitted that one more FIR was registered against

the petitioner but the same stands already quashed by the High Court of

Punjab and Haryana. He emphatically submitted that petitioner has not

misused the concession of interim bail granted to him and also that out of 13

prosecution witnesses, 05 have already been examined and only public

witnesses remain to be examined, that too one of them, namely, Sanjay, is

not appearing despite issuance of multiple summons by the trial court. It

was, therefore, urged that petitioner be released on bail during pendency of

trial.

16. On the contrary, the present petition has been vehemently opposed by

Mr. Amit Chadha, learned Additional Public Prosecutor appearing on behalf

of respondent/State by submitting that petitioner has committed a heinous

crime of attempt to murder and his previous bail applications have been

dismissed by the trial court as well as this Court and there is no change of

circumstances and so, this petition deserves to be rejected.

17. He submitted that the FSL report filed along with the supplementary

charge sheet mentions that the DNA profile generated from the samples S2,

S4a, S4b and S5, were found to be similar from source of exhibits S1a, S1b

and S1c. Learned Additional Public Prosecutor also submitted that the urine

report of injured/complainant from Venketeshwar Hospital showed presence

of Barbiturates &. Benzodiazepine.

18. He also submitted that out of the 14 witnesses, 05 prosecution

witnesses examined so far, have supported the case of prosecution and if

released on bail, there are chances of petitioner influencing and threatening

the public witnesses.

19. The arguments advanced on behalf of both the sides were considered

in the light of material place on record.

20. During the course of arguments, counsel representing both the sides

sailed this Court through testimonies of witnesses so far examined as well as

scientific and medical evidence brought on record. Though at the time of

consideration of bail amidst trial, in depth analysis of testimonies of

witnesses and scientific and medical evidence on record is not to be done,

however, while considering an application for bail a prima facie opinion has

to be formed and for doing so, a number of factors have to be borne in mind

such like nature of offence, seriousness of the charge and whether continued

detention of accused in judicial custody during trial shall meet or defeat the

ends of justice. On this aspect, the pertinent observations of the Hon'ble

Supreme Court in Mahipal Vs. Rajesh Kumar, (2020) 2 SCC 118 are as

under:-

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there

is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail."

21. In the case in hand, the allegations levelled against the petitioner are

of brutally attempting to murder his childhood school friend by mercilessly

cutting his throat not just in a semi-conscious state but also in his

consciousness and when he could not succeed and injured tried to escape, he

followed and tried to hit him with stone with an intention to kill him.

22. Learned counsel for petitioner has assailed the FSL report on the

ground that it stands mentioned therein that upon chemical, microscopic &

TLC examination, metallic poisons, ethyl and methyl alcohol, cyanide,

phosphide, alkaloids, barbiturates, tranquillizers and pesticide could not be

detected in exhibits S1a, S1b, S1c, S1d, S1e, S1f, S2, S3a, S3b, S4a & S-5.,

whereas as prosecution has relied upon the FSL report wherein it is stated

that the result of biological examination mentioned in the FSL report is that

the source of exhibits S2, S4a, S4b, S5, S1a, S1b, S1c, were found to be

similar generated from the source of exhibits S1a. Hence, the FSL report

does not fully support the case of petitioner.

23. Further, the urine test report of complainant/ injured showed presence

of Barbiturates & Benzodiazepine and it also negates the assertion of

petitioner's counsel that after injured/complainant was brought to

Venketeshwar Hospital, he was in conscious state of mind and not under the

influence of any sedatives at the time or preparation of MLC.

24. The assertion of petitioner is that prosecution witness Panna Lal (PW-

4) in his cross-examination has stated that he did not see any danda, bag,

petrol bottle, diesel bottle, kerosine bottle, paper cutter or bag inside the car.

However, he has also stated that it was after 07:00 PM when

injured/complainant along with petitioner met him and further stated that he

could not see any revolver, as it was evening time. He has also stated that he

met them only for five minutes. But fact remains that in such a short time,

that too in the evening of winters in Delhi after around 07:00 PM, what this

witness could notice lying inside the car, has to be analysed.

25. Dr. Vinay Gupta (PW-5) in his cross-examination has stated that the

injured was in conscious state and able to narrate the incident. In fact, it is

the case of prosecution that the injured/complainant was in semi-conscious

state when petitioner hit him and as he gained consciousness, he tried to

save his life by revolting against petitioner's attack and running towards the

road to seek public help.

26. The statement of doctor that the injuries could be self-inflicted, does

not appeal to the court, because no prudent person would put his life in

danger by inflicting such grievous injuries to self and putting own life in

danger and thereafter, running on a road to seek public help for calling PCR

and ambulance and even if this argument of petitioner is accepted, petitioner

has to bear the burden to prove it during trial as to in what circumstances

injured/complainant did so and it is not for this Court to form an opinion at

this stage.

27. Further assertion of petitioner that Dr. Vinay Gupta (PW-5) in his

statement has stated that in the MLC depth of injuries were mentioned on

guess and exact depth was not measured, does not come to rescue of

petitioner as the same shall be analysed at the conclusion of trial and onus is

upon the prosecution to establish how the MLC demolishes the case of

petitioner.

28. Considering the bail application of petitioner, it would be too soon to

comment upon the testimonies of the witnesses so far examined. The

Hon'ble Supreme Court in Mahipal Vs. Rajesh Kumar (Supra), has further

held as under:-

"14. The provision for an accused to be released on bail

touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the

court to examine in detail the evidence on record to come to a conclusive finding."

29. The learned trial court vide order dated 03.03.2020 has rightly

dismissed petitioner's application for bail observing that evidence is not to

be appreciated mid-way and moving bail application every now and then,

shall not dilute this settled law.

30. Pertinently, before this Court also, this is the fourth bail application

filed by the petitioner. His first bail application [BAIL APPLN 53/2020]

was dismissed as withdrawn on 10.01.2020 with liberty to seek interim bail

before the trial court. His second bail application [BAIL APPLN. 100/2020]

was also dismissed as withdrawn vide order dated 07.02.2020 with liberty to

file fresh before the trial court. His third bail application [BAIL APPLN.

726/2020] was dismissed on 10.08.2020 in view of the fact that he was

granted interim bail by the trial court on 07.07.2020. Hence, the last resort to