Delhi High Court
Komal vs The State Nct Of Delhi on 30 July, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 16th July, 2024
Pronounced on: 30th July, 2024
+ BAIL APPLN. 1471/2024
KOMAL .....Petitioner
Through: Mr. Sameer Chandra, Mr. Shubham
Parashar & Mr. Aryan Tomar, Advs.
versus
THE STATE NCT OF DELHI .....Respondent
Through: Ms. Meenakshi Dahiya, APP for the State
with Mr. Vishal Vats, Mr. Nitin, Ms. Sapna,
Ms. Monika Tyagi & Ms. Priyanka Tyagi,
Advs with SI Naveen , PS Bindapur
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
1. This petition has been filed seeking regular bail, in FIR 439 /2019, registered
at PS Bindapur, under Sections 302/201/34 of Indian Penal Code ("IPC").
2. Petitioner has been incarcerated since 01st June, 2019. Interim bail was
granted for 90 days by Trial Court and extended from time to time as per the HPC
guidelines. She was released on 03rd June, 2021 and surrendered on 07th April, 2023.
There were no previous involvements.
3. The case of the prosecution is that a PCR call was received on 24th April,
2019, informing that there was a suspicion that petitioner and another person had
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killed a four-year-old at House No. 55, Om Vihar Extn. Uttam Nagar, Delhi.
4. On inquiring, it was revealed that petitioner was residing on the second floor
of the said house along with live-in partner Ravikar, and her four-year-old son,
Saksham.
5. On 23rd April 2019, neighbours heard weeping voice of petitioner and when
they went to the house, the couple informed them that two to three days ago, the
child had accidentally fallen from the stairs, and today he had died. In the night of
23rd April 2019, Ravikar along with some neighbours took the dead body to
Wazirabad cremation ground and buried the child, since cremation had been refused
at Nigam Bodh Ghat.
6. Neighbours became apprehensive that the child had been murdered by the
petitioner. After getting permission from SDM Dwarka, the dead body was
exhumed from the Wazirabad cremation ground on 2nd May 2019. The head and the
left limb of the dead body were found missing. The body was preserved at the
mortuary.
7. On 7th May 2019, a post-mortem was conducted. On 31st May 2019, upon
receiving information from complainant Raj Bahadur (a neighbour), that petitioner
and Ravikar were present at their house, the IO reached the house and carried out
further inquiry.
8. Petitioner disclosed that she was residing with Ravikar and was not married
to him. The child was born out of wedlock from her first husband, Bikash
Chaudhary. As per prosecution, Ravikar admitted that he struck the head of
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Saksham on wall and strangulated the child.
9. Statement of Raj Bahadur, the complainant, was also taken who stated that
when he came to know that the child had died, on reaching the house, he was told
by Ravikar that child had fallen from stairs, and had been given medicines, but
ultimately died.
10. Another neighbour, Mahesh, who resided on the first floor, also came to know
about this, and at 11.30 PM Ravikar called them to come to the cremation ground.
Ravikar, along with Raj Bahadur, Mahesh and neighbours Rishabh and Anil went
in two TCRs and buried the child. A case was registered. The forensic team
examined the spot.
11. A statement was recorded by Bikash Chaudhary who confirmed that due to
the petitioner's relationship with Ravikar, petitioner had left him and was living
with Ravikar, along with her child.
12. Charge-sheet was filed. Charges were framed against the petitioner and
Ravikar. 9 witnesses out of 31 witnesses have been examined. The trial is still
underway.
13. In support of the bail petition, counsel for the petitioner factually stresses the
point that there was no evidence that ought to implicate petitioner for the death of
her own child. Prosecution is merely relying upon the hearsay evidence of the
neighbours, who were neither eye-witnesses and were merely stating so on
suspicion. The only other factor was the purported disclosure by Ravikar before the
police, which is not admissible in law. There was nothing in the post-mortem report
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to link the cause of death to any act of the petitioner.
14. Moreover, since the body was exhumed after nine days, it could well be
possible that the head and the limb were missing due to possibility of occult
practices or devouring by animals, such incidents being reported and not uncommon
in cremation grounds.
15. Moreover, none of the neighbours whose statements were taken and had gone
with the dead body for cremation, stated anything suspicious about the head or limb
of the child not being present. The body of the child had been carried by the
neighbours in a TCR so they had a chance to be in close proximity to the dead body.
16. No complaint was made by any of the neighbours before the burial of the dead
body. It was stated that the husband of the petitioner namely Bikash Chaudhary in
his cross-examination admitted that he was a habitual drinker. It was contended that
this whole case was propped up at his behest in order to take revenge from the
petitioner.
17. Counsel for petitioner highlighted testimony of PW-2 Raj Bahadur, who
mentioned that petitioner did not explain how the deceased child died and he only
stated that Ravikar, admitted in the presence of the police at the station that he struck
the child's head on the wall. The counsel argued that this statement alone cannot
implicate petitioner in her child's death, as PW-2 was merely suspicious, and even
otherwise Ravikar's purported confessional statement had no value in law
18. Testimony of PW-4 Mahesh, the other neighbour was also adverted to, who
confirmed that when he asked Ravikar, what happened to the child, he said three
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days prior he had fallen off the stairs, had been taken to the hospital, but had not
survived. Mahesh, in his testimony stated that he could not confirm if the child was
buried at Wazirabad. In cross-examination, he did state that he was sitting along
with Ravikar and one other person, with the body of the child in the auto and he
was there with four other persons when the child was being cremated. He could not
confirm whether the cloth covering the child was removed before the child was
being cremated.
19. As per the testimonies recorded so far, the case of the prosecution seems to
rest on a purported confession by Ravikar, the live-in partner of petitioner that he
had struck the head of the child against the wall. Needless to say, this statement
cannot often be proof of guilt, as per Section 25 of the Indian Evidence Act.
20. The post-mortem examination only took place after exhumation of the body,
which was after 9 days. The observations in the post-mortem report are that the
body was decomposed with maggots. The head was separated from C4-C5 vertebral
level and missing from the body and the left upper limb was separated from the left
shoulder joint and missing from the body.
21. Aside from this, the post-mortem examination was on 07th May, 2019, and
time of death was stated to be about 2 weeks. The subsequent opinion given by the
forensic experts after considering the post-mortem report and FSL chemical
analysis report of the viscera was "no definitive cause of death can be given in this
case as the head and left upper limb were missing and any other injury was
inconspicuous due to advanced stage of decomposition".
22. Prima facie, at this stage, there is nothing that can be gleaned from the post-
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mortem report to link the petitioner with the murder of the child.
23. Testimony of PW-1 rotates around various incidents of marital discord that
ultimately led to a decree of divorce. Although he denied that he was a habitual
drinker in the cross-examination, he did say he consumes liquor. Further, he did
state that the parents of accused Ravikar, were relatives of his wife and therefore,
he came in contact with Ravikar, as well. The information about the death of his
son was given by PW-1's uncle, and he arrived in Delhi on the next day.
24. According to the testimony of Raj Bahadur (PW-2), the neighbour and the
complainant, six individuals went in two autos for the burial of the child, with Raj
Bahadur not present in the auto carrying the child. Raj Bahadur further states that
his daughter-in-law called at 6:30 PM, informing him that the accused was weeping
and claiming their son was unwell, and by 8:30 PM, their son had expired. They all
went together for the burial. In these circumstances, assuming that the
accused/petitioner was responsible for the child's death, it is unlikely they would
have informed the neighbours and collectively taken the body for burial. However,
these aspects would naturally be considered during the trial.
25. As per the testimony of PW-4, Mahesh, the body of the child was in the auto
in which he was sitting with two other persons. Considering that the dead body of
the child was in close proximity to many people, there is some substance in the
petitioner's contention that no one complained about the child's head or limbs being
dismembered or missing. This does prima facie create a reasonable doubt as to
whether the head and limb were dismembered or missing, at the time when body
was taken for burial.
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26. At this stage, petitioner's contention that there is no material evidence to
establish the prosecution's case beyond a reasonable doubt would have to be
considered, particularly since petitioner has been in custody since May 2019 (about
4 years), and only 9 witnesses have been examined, out of 31 arrayed witnesses.
27. The trial is, therefore, expected to take time to conclude. Petitioner cannot be
kept in custody indefinitely as an under trial, without proof of guilt. Also, the
petitioner has been out on interim bail for a period of about 2 years from 2021 to
2023, as per HPC guidelines during COVID-19 pandemic and did not misuse the
liberty. Petitioner, is a lady who is 28 years old, has no prior involvement.
28. There is also no apprehension of tampering with the witnesses or
apprehension of threat, since all the witnesses i.e. neighbours have already been
examined. The co-accused Ravikar continues to be in custody.
29. The Supreme Court in Prahlad Singh Bhati v NCT, Delhi and Another, 2001
SCC Online SC 575, states as follows:
8. The jurisdiction to grant bail has to be exercised
on the basis of well settled principles having regard
to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the court
has to keep in mind the nature of accusations, the
nature of evidence in support thereof, the severity of
the punishment which conviction will entail, the
character, behaviour, means and standing of the
accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with,
the larger interests of the public or State and similar
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other considerations. It has also to be kept in mind
that for the purposes of granting the bail the
legislature has used the words "reasonable grounds
for believing" instead of "the evidence" which means
the court dealing with the grant of bail can only
satisfy it as to whether there is a genuine case against
the accused and that the prosecution will be able to
produce prima facie evidence in support of the
charge. It is not expected, at this stage, to have the
evidence establishing the guilt of the accused beyond
reasonable doubt.
(emphasis added)
30. In Prabhakar Tewari v. State of UP & Anr, 2020 SCC Online SC 75, the
Supreme Court underscored a significant principle in the context of bail
applications. The Court elucidated that the gravity and seriousness of the alleged
offenses, alongside the pendency of criminal cases, cannot solely constitute a basis
for the denial of bail. This ruling emphasizes that the mere existence of serious
charges and pending cases should not be prejudicially weighed against the accused
in deciding bail applications. Supreme Court's stance reinforces the importance of
considering the individual merits of each case and upholding the principles of
justice and fairness in the adjudication of bail matters. Relevant para(s) of the said
judgment are extracted under:
6. In the case of Mahipal Vs. Rajesh Kumar @ Polia
& Anr. (Criminal Appeal No.1843 of 2019) decided
on 5th December, 2019, a coordinate Bench of this
Court has discussed the scope of jurisdiction of the
appellate Court in setting aside an order of granting
bail. The two key factors for interfering with such an
order are non-application of mind on the part of the
Court granting bail or the opinion of the Court in
granting bail is not borne out from a prima facie view
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of the evidence on record. In the case of Maulana
Mohammed Amir Rashadi vs. State of Uttar Pradesh
and Another [(2012) 2 SCC 382], a two Judge Bench
of this Court declined to interfere with an order of the
High Court granting bail to an accused having
considered the factual features of that case.
7. On considering the submissions of the learned
counsel for the parties. Having regard to the
circumstances of this case, in our opinion, there has
been no wrong or improper exercise of discretion on
the part of the High Court in granting bail to the
accused. The factors outlined in the case of Mahipal
(supra) for testing the legality of an order granting
bail are absent in the order impugned. The materials
available do not justify arriving at the conclusion that
the order impugned suffers from non-application of
mind or the reason for granting bail is not borne out
from a prima-facie view of the evidence on record.
The offence alleged no doubt is grave and serious and
there are several criminal cases pending against the
accused. These factors by themselves cannot be the
basis for refusal of prayer for bail...
(emphasis added)
31. In any event, the object of jail is to secure the appearance of the accused during
the trial and the object is neither punitive nor preventive, the deprivation of liberty
cannot be considered as a punishment, particularly when the trial is expected to take
considerable time and duly delayed. In Javed Gulam Nabi Shaikh v. State of
Maharashtra and Another, 2024 SCC Online SC 1693, Court held that:
18. Criminals are not born out but made. The human
potential in everyone is good and so, never write off
any criminal as beyond redemption. This humanist
fundamental is often missed when dealing with
delinquents, juvenile and adult. Indeed, every saint
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has a past and every sinner a future. When a crime is
committed, a variety of factors is responsible for
making the offender commit the crime. Those factors
may be social and economic, may be, the result of
value erosion or parental neglect; may be, because of
the stress of circumstances, or the manifestation of
temptations in a milieu of affluence contrasted with
indigence or other privations.
19. If the State or any prosecuting agency including
the court concerned has no wherewithal to provide or
protect the fundamental right of an accused to have a
speedy trial as enshrined under Article 21 of the
Constitution then the State or any other prosecuting
agency should not oppose the plea for bail on the
ground that the crime committed is serious. Article 21
of the Constitution applies irrespective of the nature
of the crime.
(emphasis added)
32. Notably, a Coordinate Bench of this Court, in Sumer Singh v State, 2007 SCC
Online Del 1189, stated aptly, on the Court's scope of assessment at stage of bail:
20. No doubt, at this stage, I am not required to
threadbare examine the testimony of the witnesses,
but that would not mean that his court would be
totally prohibited from having a bird's eye view of the
testimony of the witnesses.
21. Certainly, it may be arguable that the court, at
this stage, cannot threadbare analyse the evidence
i.e. start identifying consistent or inconsistent
evidence and this exercise has to await final trial. But,
where prosecution case appears to be weakening,
justifying grant of bail, limited exercise of prima facie
evaluating the evidence can be carried out by this
Court.
(emphasis added)
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33. In light of the above, and that the trial in the matter is likely to take some time,
and it would not be prudent to keep the petitioner behind bars for an indefinite
period, this Court finds it to be a fit case for grant of bail to the petitioner.
Consequently, the petitioner is directed to be released on bail on furnishing a
personal bond in the sum of Rs. 25,000/- with one surety of the like amount subject
to the satisfaction of the Trial Court, further subject to the following conditions:
i. Petitioner will not leave the country without prior permission of the
Court.
ii. Petitioner shall provide permanent address to the Trial Court. The
petitioner shall intimate the Court by way of an affidavit and to the
IO regarding any change in residential address.
iii. Petitioner shall appear before the Court as and when the matter is
taken up for hearing.
iv. Petitioner shall join investigation as and when called by the IO
concerned.
v. Petitioner shall provide all mobile numbers to the IO concerned
which shall be kept in working condition at all times and shall not
switch off or change the mobile number without prior intimation to
the IO concerned.
vi. Petitioner shall not indulge in any criminal activity and shall not
communicate with or come in contact with any of the prosecution
witnesses, the complainant or any member of the complainant
family or tamper with the evidence of the case.
34. Needless to state, but any observation touching the merits of the case is purely
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for the purposes of deciding the question of grant of bail and shall not be construed
as an expression on merits of the matter.
35. Copy of the order be sent to the Jail Superintendent for information and
necessary compliance.
36. Accordingly, the petition is disposed of. Pending applications (if any) are
disposed of as infructuous.
37. Judgment be uploaded on the website of this Court.
ANISH DAYAL, J
JULY 30, 2024/RK
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