Full Text
HIGH COURT OF DELHI
JUDGMENT
SACHIN ..... Petitioner
Through: Mr. Hemant Gulati and Mr. Shobit, Advs.
Through: Mr. Ritesh Kumar Bahri, APP for State with Insp. Yunus Javed, PS.
Ghazipur Mr. Sarvan Kumar and Ms. Priya Dwivedi, Advs. for complainant
1. The present bail application has been filed under section 439 CrPC seeking regular bail in connection with FIR No. 74/2020 under sections 302/120B/34 IPC registered at PS Ghazipur.
2. Vide order dated 09.10.2023 notice was issued in the bail application and the respondent/State was directed to file a status report. The respondent/State has filed its status report, which forms part of the record.
3. The case of the prosecution is that deceased Raj Kumar used to provide home tuitions to one woman named Jyoti. The husband of Jyoti namely, Sachin (the present petitioner) had seen Raj Kumar with Jyoti and thereafter he picked quarrel with the deceased many times. On 09.03.2020, the deceased was called by Jyoti to Flat No. 313 Ashirwad Apartment, where the co-accused Vijay was also present inside the flat. When the deceased entered the flat, the petitioner along with Akash also reached there and they all brutally beat up the deceased. They also made videos from their mobile phones. After the beating, they took the deceased Raj Kumar in the petitioner’s car and dumped him on the other side of the main gate of Ashirwad Apartment from where the witness namely, Deepak took him to the hospital.
4. On the basis of a complaint made by the brother of the deceased, the FIR was registered and the accused persons namely, Jyoti, Vijay, Akash and the present petitioner (Sachin) were arrested.
5. Mr. Jitender Sethi, learned counsel for the petitioner at the outset submits that the petitioner is in custody since 10.03.2020 and the case against him is based on circumstantial evidence. Further, in the absence of the disclosure statements of the petitioner and other co-accused persons, there is no other evidence on record which can implicate the present petitioner.
6. He submits that the motive assigned in this case is that the deceased Raj Kumar was having illicit relations with accused Jyoti wife of the present petitioner, and when the petitioner came to know about the said relations, he asked Raj Kumar to desist from continuing the same but instead of discontinuing the said relationship, Raj Kumar threatened the petitioner and his wife Jyoti of uploading some objectionable videos of Jyoti on social media networking sites.
7. He contends that even as per the prosecution’s case, the deceased was having objectionable videos of co-accused Jyoti in his mobile phone and for that reason he was called to the Ashirwad Apartment so that efforts could be made to compel him to delete the said videos and not to have any relationship with Jyoti, thus, there was no intention on part of the petitioner to kill the deceased. This is further fortified by the fact that no deadly or dangerous weapon was used to beat the deceased. The case of the prosecution is that the objects of alleged beatings were gas pipe and a belan, which are invariably available in any household.
8. He submits that reliance has been placed on a video which was alleged to have been recovered from the mobile phone of the petitioner wherein the deceased was seeing lying in an injured condition and three persons were allegedly there besides him namely, the petitioner, co-accused Akash and co-accused Vijay, who had allegedly given beatings to the deceased. He submits that co-accused Akash and Vijay have already been granted bail by this Court and the said fact will enure to the benefit of the petitioner, as he is also similarly situated as co-accused Akash and Vijay.
9. He submits that a perusal of FSL Report which has been placed on record shows that the examination of audio analysis of all the four accused persons took place and in the results of examination it is mentioned that Ex Q[1] pertains to Vijay, Ex. Q[2] pertains to Akash, Ex.Q[3] pertains to accused Sachin and Ex.Q[4] pertains to Jyoti, all of which were opined to be having similar voice with regard to their specimens- Ex.S[1], Ex.S[2], Ex.S[3] and Ex.S[4], respectively, however, in the opinion beneath on the same page, it is mentioned that Ex.Q[1] and Ex.Q[2] are the possible voices of accused Akash and Vijay and with respect to Ex.Q[3] and Ex.Q[4], it is specifically mentioned that the same are the voices of the same persons i.e. Sachin and Jyoti.
10. He submits that there is no basis for the opinion that Ex.Q[3] and Ex.Q[4] are the voices of the same person i.e. Sachin and Jyoti. Elaborating on his submission, he contends that the entire confusion has been created by the Investigating Officer as he had copied all the details of the mobile phones of Jyoti, Sachin and Vijay which were received from the FSL in one pendrive. He therefore contends that the FSL Report cannot be relied upon.
11. It is also contended by Mr. Sethi that the location chart showing the petitioner at the place of incident has also been misconstrued by the prosecution. Dilating on his submission he submits that as per the case of prosecution, the petitioner is running a chemist shop which is within 100 meters of range from Ashirwad Apartment, i.e., the place of incident, therefore, there is nothing unusual in the location chart which shows petitioner’s location in the vicinity of Ashirwad Apartment.
12. He further contends that insofar as transcripts with regard to call recordings between Sachin and Jyoti are concerned, the authenticity of such recordings would only be seen at the stage of trial. In support of his submission, the learned counsel places reliance on the decision of a Coordinate Bench of this Court passed in BAIL APPLN. 2585/2021 titled as “Jalil Khan vs. State”.
13. He submits that the case of the prosecution is that deceased was left outside the gate of Ashirwad Apartment by the accused persons in an unconscious state. However, a perusal of the testimony of PW[4] - Harshit Kashyap shows that the deceased Raj Kumar had called him around 10.00 –
10.15 P.M. intimating that he is outside Ashirwad Apartment. Thereafter, he went to the Ashirwad Apartment where he found Raj Kumar deceased sitting on the ground in an injured condition. Thus, evidently the deceased was in a conscious state of mind.
14. Further, inviting the attention of the Court to the testimony of PW5- Deepak Kumar, the learned counsel for the petitioner submits that the said witness has also categorically stated that when he went to the spot he saw the deceased lying on the ground and the deceased asked him to take him to the hospital which shows that deceased was in a conscious state of mind. The deceased also disclosed his name, parentage etc. on his own to the doctor in the hospital. Thus, according to the learned counsel, the deceased was not unconscious at the time when he was picked up at about 10.00 –
10.15 P.M. from outside the Ashirwad Apartment, which create doubt about the case of prosecution and goes to show that there was no intention to kill the deceased.
15. He submits that as per the post mortem report, the deceased had received about 23 injuries on his person, out of which most of the injuries were either abrasions or bruises and as per Modi’s Jurisprudence Chapter 23 the proposed abrasions and bruises have been defined as simple injuries in nature, but cumulatively sometimes they may cause death from shock.
16. He submits that insofar as lifting of blood stains and hair from the flat in Ashirwad Apartment, as well as, from Tata Nexon car are concerned, the same were lifted on 11.03.2020, but at that point of time neither any public witness nor any accused persons were joined, which creates serious doubt about the veracity of recovery of blood and hair from the above said two places.
17. He submits that PW6- Sonu, the brother of deceased, who allegedly accompanied the police on 10.03.2020 for getting the accused persons arrested has not stated anything regard with to the recoveries and even in his examination-in-chief he has stated that “I am not aware who opened the gate of this flat. Thereafter we entered the said flat. I saw blood on the floor of the flat.”According to the learned counsel, if PW6-Sonu was present, it is not understandable as to why he was not made witness to the various seizure memos.
18. He submits that a perusal of the seizure memo dated 13.03.2020 vide which the mobile phone of the deceased was handed over by PW6-Sonu to the IO shows that some data was deleted from the said mobile phone and the same could have revealed the real character of the deceased. He submits that the PW6-Sonu has also disowned the said seizure memo by deposing before the Court.
19. He submits that on one hand the FSL report dated 24.03.2020 reveals that the mobile phone of the deceased which was marked as “MP4” was password protected (pattern lock), and the same was stated to be unable to be unlocked with the tools available in the laboratory, as such, data could not be retrieved from the said phone. On the other hand, the seizure memo dated 13.03.2020 reveals that IO was able to unlock the said phone to find out four calls were made to deceased Raj Kumar by co-accused Jyoti.
20. He submits that it is not understandable why the password protected phone could not be accessed by the FSL when the password of the same was available with the IO. Thus, according to the learned counsel this shows that the prosecution wanted to conceal some material and relevant data which could have gone against the case of the prosecution.
21. He submits that the petitioner is in custody since 10.03.2020 and the prosecution has cited as many as 36 witnesses in all and till date only 10 witnesses have been examined. According to the learned counsel, the trial is going to be a protracted one and under the facts and circumstances of the case, the petitioner may not be kept in custody for indefinite period to await the outcome of trial.
22. He submits that the petitioner neither has any criminal record nor he is a flight risk, in as much as, he has wife and two daughters, as well as a retired father who is aged about 62 years. Besides that, the petitioner was also running a chemist shop, he therefore, urges the Court to enlarge the petitioner on bail.
23. Per contra, the learned APP appearing on behalf of the State has argued on the lines of the status report. He submits that the petitioner is the main accused and the allegations against him are also serious in nature.
24. He further submits that the benefit of the regular bail granted to coaccused Jyoti, Vijay and Akash will not enure to the benefit of the petitioner as the role ascribed to the present petitioner is different from that of the coaccused persons.
25. Mr. Sharvan Kumar, learned counsel appearing on behalf of the complainant submits that a bare perusal of the transcript of calls between the accused persons shows that the accused persons were having a pre-planned conspiracy to kill the deceased so as to take revenge from him.
26. He submits that to execute their plan, one of the co-accused Akash had also deliberately taken a room on rent in Ashirwad Apartment one or two months prior to the date of incident which was less than 100 meters away from the medical shop of the petitioner / Sachin.
27. The learned counsel has brought attention of the Court to the transcript of conversation between the accused persons to show the presence of one more accused person namely, Dimpy at the place of incident along with petitioner Sachin, who has neither been arrested nor been identified.
28. He submits that the complainant and his sisters are also receiving threats from accused persons who have already been released on bail. He, therefore, urges the Court to dismiss the bail of the petitioner.
29. I have heard the learned counsel for the petitioner, learned APP for the State, as well as, the learned counsel for the complainant and have perused the record.
30. The case of the prosecution is that the wife of the petitioner was having an extra-marital affair with the deceased and the deceased was insisting her (co-accused Jyoti) to meet him as he was having some objectionable videos of her. It is further the case of the prosecution that the petitioner caught his wife Jyoti talking to Raj Kumar, thereafter, there was a fight between them and despite that the deceased kept on calling Jyoti.
31. It is not the case of the prosecution that when deceased was called to Ashirwad Apartments, the accused persons were equipped with deadly or dangerous weapons. On the contrary, it is a definite case of the prosecution that the objects which were used in beating the deceased were gas pipe and a belan. In this factual backdrop, the submission of the learned counsel for the petitioner that the accused persons had no common intention to kill the deceased cannot be negated altogether.
32. Likewise, prima facie there also appears to be some merit in the contention of the learned counsel for the petitioner put forth with reference to the testimony of PW-4 and PW-5 that the deceased was in conscious state when they had found him outside the Ashirwad Apartments which is contrary to the case of the prosecution to the effect that the deceased was thrown on the other side of the gate of Ashirwad Apartment by the accused persons in an unconscious state, which has the potential of creating doubt in the prosecution’s case besides establishing that there was no intention to kill.
33. Though the opinion of the doctor says that all injuries are sufficient to cause death collectively in ordinary course and are homicidal in nature but at the same time the submission of the learned counsel for the petitioner that there were 23 injuries on the person of the deceased but most of the injuries were either abrasions or bruises and none of the injury by itself was opined sufficient in the ordinary course of nature to cause death, which also shows that there was no intention to cause death, cannot be brushed aside at this stage.
34. However, it is for the learned Trial Court to record its satisfaction whether the accused persons had common intention to cause death of the deceased or they only had knowledge that by inflicting such injuries they were likely to cause the death. Accordingly, the learned Trial Court at an appropriate stage will take an ultimate call that the petitioner, if at all, is guilty under Section 302 IPC or Section 304 Part I or 304 Part II IPC.
35. Undoubtedly, the offence under Section 302 IPC is punishable with life imprisonment whereas for the offence under Section 304 Part I the minimum punishment prescribed is 10 years which may extend to life. Notably, an offence under Section 304 Part II is also punishable with maximum imprisonment of 10 years and there is no minimum punishment prescribed for the same. It would indeed be a travesty of justice to keep a person in jail for an indefinite period for an offence which ultimately is found not to have been committed by him or for which the learned Trial Court may propose to award punishment with imprisonment which is lesser than the period for which he has already been incarcerated.
36. There is also some substance in the submission of the learned counsel for the petitioner that there is no basis for the opinion that Exhibit Q[3] and Exhibit Q[4] are of same person i.e. Sachin and Jyoti, when in the result of examination, the opinion given is that questioned voices of all the four accused persons were found to be similar to their specimens.
37. In so far as the reliance placed on the transcripts by the learned counsel for the petitioner is concerned, suffice it to say that this Court in Jalil Khan (supra) has observed that the detailed transcripts in respect of conversations between petitioner and the co-accused can appropriately be assessed in the light of the evidence of the witnesses to be led during course of trial.
38. In regard to the location of the petitioner which was found to be that of Ashirwad Apartments at the relevant time, this Court finds some substance in the contention of the learned counsel for the petitioner that the location of the petitioner being within vicinity of Ashirwad Apartment is not unusual as it is the case of the prosecution itself that Chemist Shop of the petitioner was only 100 meters away from Ashirwad Apartments.
39. It is also not in dispute that no witness was joined in the seizure memos vide which the blood and hair of the deceased were lifted from the flat, as well as, from the Tata Nexon car; even PW-6/Sonu (complaint) was not made witness to the such seizure memo despite he was available at the flat in Ashirwad Apartment.
40. The FSL Report dated 24.03.2020 reveals that mobile phone of the deceased was found to be password protected and the same could not be unlocked with the tools available at the laboratory and the data could not be retrieved from the same, whereas the Seizure Memo dated 13.03.2020 shows that the I.O was able to unlock the said phone to find out that the four calls were made to deceased Raj Kumar by co-accused Jyoti on the date of incident. Although it is for the learned trial to decide about the probative value of aforesaid fact in the light of entire evidence but the submission of learned counsel for the petitioner that the prosecution wanted to conceal some material and relevant data which could have gone against the case of the prosecution cannot be overlooked altogether while considering the present bail petition.
41. That apart, as per the case of the prosecution, the role ascribed to the petitioner is similar to that of co-accused Akash and Vijay, who have already been enlarged on bail.
42. Further, the petitioner is in custody since 10.03.2020 and has evidently been incarcerated for a period of 4.[5] years approximately. The prosecution has cited as many as 36 witnesses in total and till date only 10 witnesses have been examined. Thus, the trial is going to be a protracted one. It is trite law that the delay in commencement and conclusion of trial is also a factor to be taken into account while deciding a bail plea and the accused person cannot be kept in custody for an indefinite period, if the trial is not likely to be concluded within a reasonable period of time.
43. It is also equally well settled that at pre-conviction stage, there is presumption of innocence, the object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed, the detention is not supposed to be punitive or preventive.[1]
44. Undisputedly, the petitioner does not have any criminal record. Besides that, the petitioner is stated to have been awarded various appreciation certificates by the jail authorities for maintaining overall good conduct. It is also not the case of the prosecution that the petitioner is a flight risk.
45. In so far as the contention of the learned counsel for the complainant that threats were received by the complainant and his sisters regarding which a complaint was made, suffice it to observe that the prosecution has not pointed out as to whether such complaint was investigated and what transpired in the investigation. In any case, to allay all such apprehensions, appropriate conditions can be imposed while granting bail to the petitioner.
46. Considering the aforesaid circumstances in totality, this Court is of the opinion that the petitioner has made out a case for grant of regular bail. Accordingly, the petitioner is admitted to regular bail subject to his furnishing personal bond in the sum of Rs. 20,000/- and a surety bond of the like amount subject to the satisfaction of the learned Trial Court/CMM/Duty Magistrate, further subject to the following conditions:- (a) Petitioner/applicant will not leave the city without prior permission of the Court. (b) Petitioner/applicant shall appear before the learned Trial Court as and when the matter is taken up for hearing. Vinod Bhandari vs. State of Madhya Pradesh; (2015) 11 SCC 502
(c) Petitioner shall provide the address where he would be residing after his release and shall not change the address without informing the concerned IO/SHO.
(d) Petitioner/applicant shall provide all mobile numbers to the IO concerned which shall be kept in working condition at all times and he will not change the mobile number without prior intimation to the Investigating Officer concerned. (e) Petitioner/applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with the, witnesses or any family members of the witnesses.
47. It is made clear that the observations made herein above are only for the purpose of considering the bail application and the same shall not be deemed to be an expression of opinion on the merits of the case.
48. The petition stands disposed of.
49. Copy of the order be forwarded to the concerned Jail Superintendent for information and necessary compliance.
50. Order dasti under signatures of the Court Master.
51. Order be uploaded on the website of this Court.
VIKAS MAHAJAN, J. AUGUST 16,2024 N.S. ASWAL/dss