Bhupender @ Rohit v. State (Govt. of NCT of Delhi)

1. The present application is filed seeking regular bail in FIR No. 163/2019 dated 28.04.2019, for offences under sections 365/34 of the Indian Penal Code, 1860 (‘IPC’), registered at Police Station Narela, Outer North. The chargesheet was filed under sections 364/302/201/34 of the IPC.

2. Briefly stated, the case of the Prosecution is that the deceased while assisting his mother/complainant in purchase of groceries from a nearby market was allegedly abducted by the applicant/accused along with co-accused persons, who arrived at the place of occurrence in a car and forcefully dragged the deceased into the car and ran away which led to the registration of the present FIR No. 163/2019 at the instance of the mother of the deceased/complainant.

3. Further, during investigation the body of the deceased was recovered within the jurisdiction of PS Rai, Sonipat, Haryana. Consequently, Section 302 of the IPC was added to the FIR, which initially was registered for offences under Section 365/34 IPC for kidnapping.

4. It is contended on behalf of the applicant that the applicant is in custody for the last 5 years in as much as the applicant has been incarcerated since 01.05.2019. It is submitted on behalf of the applicant that the case of the prosecution profoundly relies upon the testimonies of the complainant and father of the deceased which are highly contradictory in nature as against their deposition during the trial.

5. It is further submitted on behalf of the applicant that the applicant lacks any motive or enmity against the deceased and therefore has been falsely implicated in this case by the prosecution upon the disclosure of the co-accused – Mohit.

6. He submitted that the applicant came from a poor economic background and has a dependent family, including his widow mother, wife, and a child of about 7-8 months. His prolonged detention had severely impacted his family’s survival.

7. He submitted that no CCTV footage or independent witnesses supported the prosecution’s case. Despite the incident allegedly occurring in broad daylight, no independent witnesses had come forward to corroborate the prosecution’s narrative.

8. He stated that the applicant’s name was not mentioned in the initial FIR, despite him being known to the family of the deceased, further suggesting that his implication in the case was an afterthought.

9. He submitted that the investigation has been completed, and the chargesheet had already been filed. The applicant submitted that there was no need to keep him in custody any longer, as he was no longer required for investigative purposes.

10. On the other hand, the learned Additional Public Prosecutor for the state submits that the allegations against the applicant are grave and serious and the defences taken by the applicant are a matter of trial and cannot be looked into at the time of deciding whether the applicant is entitled to be released on bail. He submits that the applicant is actively involved in the heinous offence of murdering the deceased

11. It is settled law that the Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.

12. However, prolonged incarceration as an undertrial militates against the right to life and personal liberty guaranteed under Article 21 of the Constitution, and is also a factor which has to be kept in mind at the time of deciding the question of grant or refusal of bail.

13. It is alleged that the mother of the deceased knew the applicant, as he was allegedly their neighbour. It is contended that in such circumstances, there is no plausible explanation provided by the prosecution for her failure to name the applicant in the initial complaint, especially given their familiarity. This raises significant doubts about the veracity of her statements implicating the applicant at a later stage. It is also noted that the applicant’s arrest was primarily based on the disclosure made by the co-accused, Mohit, who was identified by the mother of the deceased. No independent or public witnesses were produced to support the prosecution’s claims, despite the alleged incident taking place in a public area. All material witnesses, including the parents of the deceased, have already been examined, and their testimonies have exhibited inconsistencies. The father of the deceased initially did not name the applicant in his statement under Section 161 CrPC, nor did he name him during his testimony on 11.11.2022. It was only during a subsequent statement on 21.09.2023, that the father named the applicant. This delay and change in the father’s testimony at this stage creates doubt on the credibility of the allegations against the applicant. The contradictions in the statements would be tested during the trial, however, benefit of the same cannot be denied at the time of considering application for bail.

14. It is also relevant to note that the applicant is in custody since 28.04.2019 and the trial has not proceeded much. It is pointed out that the material witnesses have been examined. The applicant has suffered incarceration for a significant period of time.

15. The applicant is also stated to be of clean antecedents. Keeping him in further incarceration would only result in the denial of his fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution of India, when the trial is not likely to conclude in near future.