Delhi High Court

Naushad Ali vs State Nct Of Delhi on 28 May, 2025

                          $~
                          *        IN THE HIGH COURT OF DELHI AT NEW DELHI

                          %                                    Reserved on: 21st May, 2025
                                                               Pronounced on: 28th May, 2025

                          +        BAIL APPLN.4722/2024
                                   NAUSHAD ALI                                      .....Petitioner
                                                      Through:      Mr. Mutiur Rehman, Mr.
                                                                    Nadeem Khan, Ms. Shaheen,
                                                                    Ms. Mehwish Khanam, Ms.
                                                                    Arshi, Ms. Nazish Khanam,
                                                                    Advocates.

                                                      versus
                                   STATE NCT OF DELHI                            .....Respondent
                                                      Through:      Mr. Aman Usman, APP with
                                                                    Insp. Rizwan, PS-Karawal
                                                                    Nagar and ACP Sanjeev
                                                                    Kumar.

                          CORAM:-
                          HON'BLE MR. JUSTICE RAVINDER DUDEJA
                                                  JUDGMENT

RAVINDER DUDEJA, J.

1. This is an application filed on behalf of petitioner/accused under

Section 439, Cr.P.C., 1973 and Section 483 BNSS, 2023 for grant of regular

bail in case FIR No. 388/2019, registered under Sections 302/201/34 IPC at

Police Station Karawal Nagar.

2. The prosecution case in brief is that on 26.09.2019, victim left her

house to visit her tuition teacher, Naushad Ali (petitioner herein), but did

not return to her house. On 29.09.2019, a PCR call, vide DD No. 8A was

made at Police Station Karawal Nagar, regarding a dead body found at

Ganda Nala near Sardar Patel School, Karawal Nagar. Police reached at the

spot and found a highly decomposed body near Ganda Nala of an unknown

female, aged about 25 years. This led to the registration of the present FIR.

The post mortem report suggested the cause of death as "Asphyxia as a

result of ante mortem drowning". The body was identified by the brother

and uncle of the victim. The statements of Rabia Begum, mother and

Danish, brother of the victim, were recorded. They stated that victim left the

house to meet her tuition teacher on the fateful day i.e. 26.09.2019 and she

was missing since then.

3. As per the prosecution case, the deceased had gone to visit the

petitioner at his house as she was having a love affair with him and was

pressurizing him for marriage, but petitioner was already married, and

therefore, to get rid of her, he gave danda blow on the head of the victim.

Assuming her to be dead, he put her body in a jute sack and called his

brother-in-law Rajiq @ Sameer (co-accused herein). Co-accused Rajiq @

Sameer borrowed ECO van of his brother, Md. Shahid Rizwi on the pretext

of taking his sister to hospital, but, in fact, the ECO van was used by the

petitioner and co-accused to dump the body of the victim in Ganda Nala at

Karawal Nagar.

4. During investigation, Police recorded the statement of Anees Ahmed

under Section 161 Cr.P.C. on 01.01.2020, wherein he stated that he saw the

petitioner and co-accused carrying a heavy moving thing in a jute sack,

which they put in a silver colour ECO van. Statement of Md. Shahid Rizwi

that he had given his car to the co-accused, was also recorded.

5. Petitioner seeks bail on the ground that he has already spent over five

years in judicial custody with no incriminating material or murder weapon

recovered from him and no proven link to the alleged crime. Prosecution

case based on circumstantial evidence is weak and inconsistent with no

CCTV footage, unreliable call records, delayed forensic submissions and

lack of credible witnesses. Key witnesses, including PW-2, Md. Shahid

Rizwi and the alleged last seen witness PW-10, Anees Ahmed, have either

contradicted the prosecution version or made delayed statements, casting

doubts on their credibility. The post mortem report attributes the cause of

death to drowning rather than injuries, allegedly inflicted by the petitioner,

further weakening the case. The co-accused has already been granted bail

and many witnesses are yet to be examined. The petitioner has clean

antecedents, is not at flight risk and his conduct in jail has been good and

undertakes to cooperate with the trial. Given these factors, including his role

as the bread earner of his family, the petitioner prays for bail.

6. Learned counsel appearing for the petitioner has submitted the oral

arguments with the written submissions, stating that the key prosecution

witnesses i.e. PW-2, Md. Shahid Rizwi and PW-10, Anees Ahmed, have

turned hostile and have not supported the prosecution case, thereby

undermining the credibility of the prosecution case against the petitioner. It

is submitted that there was an unexceptional delay of 90 days in recording

of statement of PW-10, Anees Ahmed, under Section 161 Cr.P.C., raising

doubts about its reliability. The absence of CCTV footage or video

evidence, despite the incident allegedly occurring in a densely populated

area, further weakens the prosecution claims. It is additionally submitted

that inconsistencies exist regarding the recovery location of alleged murder

weapon i.e. wooden log/danda and its recovery after 10-12 days of the

incident casts further doubt. There was also a significant delay of 84 days in

sending crucial evidence, including the belongings of deceased for forensic

examination at FSL. It is averred that Police failed to seize or examine the

mobile phone of the petitioner. The CDRs lack location data. Conclusively,

counsel for the petitioner submits that with 12 out of 32 prosecution

witnesses examined, petitioner who has been in custody since 07.10.2019

with good jail conduct and no prior criminal record, is entitled to the grant

of bail.

7. The bail application has been opposed by the learned APP, appearing

on behalf of the State. Referring to the status report, it has been contended

that CDRs indicate that petitioner was in constant contact with the deceased

prior to her death and also communicated with co-accused during the

commission of alleged crime. However, based on information provided by

both accused, belongings of the deceased (stole and sandal) and weapon i.e.

wooden log/danda allegedly used in the offence were recovered from the

area near Jafrabad Metro Station besides the nala. These items were

subsequently identified by the mother of the deceased during Test

Identification Parade [TIP]. Additionally, the broken mobile phone,

belonging to the deceased was also recovered on the basis of disclosure

made by the petitioner. According to FSL results, soil samples, lifted from

third floor of the petitioner's house contain fibers similar to those found on

jute sack recovered from ganda nala, Karawal Nagar, where the body of the

deceased was dumped. According to learned APP, there is sufficient strong

evidence against the petitioner. In view of the same, petitioner is not

entitled for the grant of bail.

8. The Court has considered the arguments advanced by learned

defence counsel as also the learned prosecutor and has perused the material

placed on record.

9. Admittedly, the case against the petitioner is based on circumstantial

evidence and in case of circumstantial evidence, the Court needs to see

whether the circumstances presented by the prosecution are supported by

credible and cogent evidence and the entire chain of events is so complete

that it eliminates any reasonable doubt regarding the innocence of the

accused. Of course, such assessment is made at the final stage of the trial

after the entire evidence is led. However, even at the stage of bail, the Court

may broadly look into the evidence coming on record for determining or

deciding the question of grant of bail.

10. Md. Shahid Rizwi and Anees Ahmed have already been examined by

Court as PW-2 and PW-10 respectively. Admittedly, they have not

supported the prosecution case and have turned hostile. A belated recovery

of the belongings of the deceased and the danda, delay in sending crucial

evidence to FSL etc. weakens the case of prosecution.

11. Out of 32 witnesses, only 12 have been examined so far and the trial

is likely to take considerable time to conclude. The Nominal Roll of the

petitioner does not indicate that petitioner has any criminal antecedents. He

has been in judicial custody since 07.10.2019. There is no likelihood of the

trial being concluded in the near future. In case of Manish Sisodia vs.

Directorate of Enforcement [2024 INSC 595], the Hon'ble Supreme Court

has emphasized that the right to speedy trial and right to liberty are

sacrosanct rights, and therefore, while granting bail, the Court should give

due weightage to these factors. The relevant paragraph of the judgment is

extracted below:-

"53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception"

12. The petitioner has been in judicial custody for over five years and

seven months. Prolonged incarceration before being pronounced guilty of

an offence should not be permitted to become punishment without trial.

Considering long incarceration, denying bail to the petitioner would deprive

him of his fundamental right to liberty under Article 21 of the Constitution

of India.

13. As per the Nominal Roll, petitioner was granted interim bail from

09.02.2022 to 14.02.2022. There is no allegation that he had in any manner

misused the grant of interim bail. The petitioner is, therefore, not a flight

risk. Most of the material witnesses have already been examined, and

therefore, there is remote possibility of him tampering with the evidence.

14. Hence, considering the totality of facts and circumstances, the bail

application is allowed. Petitioner is admitted to bail on his furnishing a

personal bond in the sum of Rs. 50,000/- with a surety of the like amount to

the satisfaction of the trial Court and subject to the following conditions:-

a. Petitioner shall not leave the country without prior permission of the

trial Court.

b. Petitioner shall appear before the trial Court, as and when directed.

c. Petitioner shall share his mobile number with Investigating Officer

and keep it operational at all times.