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HIGH COURT OF DELHI
JUDGMENT
DEEPAK DHANKAR ALIAS MANDU .....Applicant
For the Applicant : Mr. Ramesh Gupta, Sr. Adv. with Mr. Shailendra Singh & Mr. Ishaan Jain, Advs.
For the Respondent : Mr. Manoj Pant, APP for the
State.
Inspector Amit, PS- BHD Nagar Inspector Ravi Kumar, PS- BHD
Nagar.
1. The present application has been filed seeking grant of regular bail in FIR No. 21/2017 dated 29.01.2017 registered at Police Station Baba Haridas Nagar, for offences under Sections 302/34 of the Indian Penal Code (‘IPC’) and Sections 25/27 of the Arms Act, 1959.
2. The FIR in the present case was registered on the basis of the complaint given by the complainant, Mukesh who alleged that on the fateful day of 29.01.2017, he and the deceased, Kishan Pradhan, were standing outside the gate of the deceased’s residence at village Mitrau, purchasing vegetables from a vendor when a white Scorpio vehicle bearing registration number HR- 13B-8018 came from one side and stopped in front of the gate of the house.
3. It was alleged that one Ankush @ Bhola was seated in the front seat of the vehicle, along with the driver, while two unidentified individuals occupied the rear seat. The complainant alleged that Ankush and one of the individuals from the rear seat stepped out of the vehicle, took out firearms, and opened fire on the deceased and fled the spot.
4. Following the incident, Kishan Pradhan was taken to RTRM Hospital by the complainant and a neighbour, Dalbir Singh, where he was declared brought dead.
5. It is alleged that during investigation the police received information with respect to the arrest of one, Deepak Maan (coaccused) with other accused persons who were involved in the commission of the present offence, by the Special Task Force, in another FIR bearing FIR No. 20/2017.
6. On 15.03.2017, further information was received regarding arrest of the applicant/accused whereafter, on 16.03.2017 the applicant was arrested in the present FIR after interrogation. It is stated that the applicant refused to participate in the TIP proceedings. During the Police Custody remand, the applicant was identified by the complainant at Police Station Baba Haridas Nagar.
7. The prosecution alleged that the weapons used by the accused persons in the present FIR were already recovered by the Special Cell in FIR No. 20/2017.
8. The charge sheet in the present case has been filed and the matter is pending at the stage of recording of evidence.
9. The prosecution cited three primary eyewitnesses: the complainant, Mukesh – PW 1 (servant of the deceased); the vegetable vendor, Prem Ranjan Pathak – PW 2; and the deceased’s daughter-in-law, Rama – PW 9.
10. After completion of the investigation, chargesheet in the present case was filed before the Learned Trial Court, against the accused person under Sections 302/34 of the IPC and Section 27 of the Arms Act, and subsequently, charges have been framed.
11. The bail application preferred by the applicant before the learned Trial Court was dismissed by order dated 10.07.2024.
12. The learned senior counsel for the applicant submitted that the applicant has been falsely implicated in the present case, and there is no direct evidence linking him to the alleged crime. It was argued that the prosecution’s case heavily relies on contradictory eyewitness testimonies and lacks corroborative material evidence to substantiate the charges against the applicant.
13. He submitted that the chargesheet in the present case has been filed, and charges have been framed by the learned Trial Court. Hence, the custody of the applicant is not required.
14. He highlighted significant inconsistencies in the statements of the three primary prosecution witnesses. He submitted that none of the eye-witnesses have been able to link the applicant with the offence committed in the subject FIR. He submitted that the daughter-in-law of the deceased, Rama, claimed to have witnessed the incident from the terrace of her house and identified the applicant as one of the assailants who alighted from the vehicle and fired at the deceased. He argued that her vantage point made it improbable for her to reliably identify the individuals, as she could not have seen their faces with clarity from such a height. It was further argued that her statement appears to be an afterthought and that she was likely a planted witness to bolster the prosecution’s case.
15. The learned senior counsel emphasized that the prosecution’s case lacks cogent evidence to substantiate the charges. It was argued that no weapon was recovered from the applicant.
16. He submitted that the failure of the prosecution to conduct a Test Identification Parade (‘TIP’) is fatal to the case, particularly when the accused was initially unknown to the witnesses. It was contended that the prosecution was duty-bound to ensure that the identification of the accused was conducted in a fair and procedurally sound manner. The absence of a proper TIP, especially when the accused refused to participate, undermines the credibility of the prosecution’s claim regarding the applicant’s involvement in the alleged crime.
17. The learned senior counsel also pointed out the prolonged period of incarceration suffered by the applicant, who has been in custody since 16.03.2017. He submitted that despite being in custody for more than five years, the trial is far from completion, and all the material witnesses have been examined. No purpose would be served by keeping the applicant in further incarceration.
18. He submitted that the applicant has deep roots in society, with family responsibilities, making the likelihood of absconding or fleeing justice minimal. The applicant has cooperated with the judicial process, having been released on interim bail on multiple occasions and surrendered within the stipulated time without any violations.
19. The learned senior counsel, to buttress his arguments has relied upon the following judgments: a. Ramesh v. State of Karnataka: (2009) 15 SCC 35. b. Suresh v. The State of Kerala: 2024 CriLJ 2652. c. Ashok Sagar v. State (NCT of Delhi): 2018:DHC:3755. d. Arnab Manoranjan Goswami v. The State of Maharashtra and Ors.: AIR 2021 SC 1. e. Javed Gulam Nabi Shaikh v. State of Maharashtra and Ors.: 2024 (3) ACR 697. f. Sheikh Javed Iqbal v. State of Uttar Pradesh: AIR 2024 SC 3579. g. Manish Sisodia v. Directorate of Enforcement: AIR 2024 SC 4053. h. Sanjay Saxena v. State of GNCTD: 2023:DHC:596 i. Sumer Singh v. State: BAIL APPLN. 750/2007 decided on 03.09.2007. j. Mukesh Singh v. The State (NCT of Delhi): AIR 2023 SC 4097.
20. He submitted that the co-accused, Deepak Maan has been granted bail by this Court vide order dated 01.07.2024 and therefore, the applicant is entitled to bail on the ground of parity.
21. Per Contra, the learned Additional Public Prosecutor (‘APP’) for the state vehemently opposed the request for grant of bail. The learned APP submitted that the applicant has demonstrated a disregard for the law and may evade the judicial process if released on bail. Highlighting the applicant’s criminal antecedents, the APP pointed out that the applicant is involved in at least three other criminal cases, thereby establishing a pattern of unlawful behaviour and justifying the need for continued custody.
22. The learned APP further argued that the prosecution has strong evidence linking the applicant to the crime. Both PW-1, Mukesh Kumar, and PW-9, Rama (the deceased’s daughter-inlaw), identified the applicant as one of the individuals who fired shots at the deceased. The prosecution has asserted that the applicant alighted from the vehicle and opened fire on the deceased, an accusation supported by the testimony of the deceased’s daughter-in-law. While there may be contradictions in her statement, they pertain to trial-stage scrutiny and do not diminish the seriousness of the applicant’s alleged role.
23. The learned APP also emphasized that the crime was not an isolated incident but a premeditated act stemming from intergang rivalry, which underscores its gravity.
24. He submitted 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 submitted that the applicant is actively involved in the heinous offence of murdering the deceased.
25. He submitted that at the stage of consideration of an application seeking release on bail, the Court should not go into the credibility of the witnesses relied upon by the prosecution. He submitted that a long period of custody alone cannot be a ground for releasing the applicant on bail in cases involving such heinous crimes.
26. Additionally, the learned APP expressed concerns about the potential for the applicant to commit further offenses if released on bail. Given the applicant’s history of criminal activities and the nature of the crime—a gang-related murder— the risk of the applicant engaging in further unlawful activities or endangering witnesses cannot be fully ruled out.
27. He stated prima facie, substantive evidence exists delineating the motive underpinning the commission of the alleged offence.
28. The Hon’ble Apex Court in catena of judgments has consistently emphasised the factors to be taken into account when considering bail application, which include: (i) the nature or gravity of the offense; (ii) the character of the evidence and circumstances unique to the accused; (iii) the likelihood of the accused evading justice; (iv) the potential impact of the release on prosecution witnesses and its societal repercussions; and (v) the probability of the accused engaging in tampering.
29. At the outset, it is noted that the offence charged against the applicant is heinous and grave, and if proved, is punishable with death or life imprisonment. The Hon’ble Apex Court in Satish Jaggi v. State of Chhattisgarh: (2007) 11 SCC 195, held that the question of credibility and reliability of witnesses put up by the prosecution, should not be gone into by the Court at the stage while considering an application filed by the accused seeking bail; it is a matter to be determined by the learned Trial Court. Further, it has also been held in a catena of judgments that while considering an application of the accused seeking bail, the Court would not be justified in going into evidence on record at such depth so as to ascertain probability of conviction of the accused. The same is a matter of trial.
30. The postmortem report of the deceased clearly establishes that the death of the deceased was caused due to firearm injury. Prima facie, this Court finds that there is substantial material on record that implicate the applicant in the commission of the alleged offence. Firstly, both PW-1, Mukesh Kumar, and PW-9, Rama, have identified the applicant as one of the individuals who fired shots at the deceased. Their statements, although subject to scrutiny during the trial, constitute significant evidence at this stage. Secondly, the ballistic report further corroborates the use of weapons consistent with the injuries inflicted. These scientific findings lend credence to the prosecution's case and implicate the applicant in the crime.
31. The nature of the crime and the weight of the prima facie evidence suggest that granting bail at this stage would not be in the interest of justice.
32. It is evident that the grant of bail should not be arbitrary or whimsical. The Hon’ble Apex Court in Neeru Yadav v. State of U.P.: (2014) 16 SCC 508, where the Court, while setting aside the bail order, made the following observation:
33. Being conscious of the fact that individual liberty holds immense significance, it is incumbent upon the Courts to examine and evaluate, albeit briefly, factors such as the prima facie case, the severity of the crime, and the accused’s likelihood to tamper with evidence, among other considerations.
34. It is pointed out that the applicant has been in custody for more than 5 years. It is trite that long period of incarceration is a factor to be considered while deciding the question of bail. The Hon’ble Apex Court in the case of Union of India v. K.A. Najeeb: AIR 2021 SC 712, has held that once it is obvious that a timely trial would not be possible, and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.
35. However, in the opinion of this Court, long period of incarceration alone cannot be a single factor for grant of bail especially when the evidence collected at this stage prima facie points towards the guilt of the accused. The applicant is charged for an offence under Section 302 of the IPC wherein the minimum punishment is imprisonment for life. For this reason, even though there has been a long period of incarceration, yet the same cannot be the only reason to grant bail to the applicant at this stage.
36. Further, the applicant’s involvement in other criminal cases demonstrates a pattern of recidivism and a propensity for unlawful behaviour. This Court cannot ignore the applicant’s criminal antecedents, as they significantly increase the likelihood of him reoffending or posing a danger to society if released. The applicant’s history also undermines his claim to have clean antecedents or to be deserving of leniency.
37. The prosecution has expressed apprehensions that the applicant’s release on bail may lead to witness intimidation and tampering with evidence. Given the nature of the offense and the applicant's alleged involvement in inter-gang rivalry, such apprehensions are not without basis. The fact that several prosecution witnesses are yet to be examined heightens the risk of interference with the judicial process if the applicant is released.
38. The senior counsel submitted that it is a well-settled principle of law that the identification of an unknown accused must be established during the investigation to avoid any influence on the witnesses or fabrication of evidence even if the accused refuses to participate in the test identification proceedings.
39. The applicant’s refusal to participate in the TIP does not nullify the prosecution's case, nor does it constitute sufficient ground for granting bail. It is well-established that the substantive evidence is the identification made in court, and a TIP serves to corroborate this in-court identification. The weight to be attached to an in-court identification, not preceded by a TIP, is a matter for the trial court to determine. Therefore, the applicant’s refusal to participate in the TIP does not vitiate the prosecution’s case, and bail cannot be granted solely on this ground.
40. Moreover, it is not disputed that two eye witnesses have identified the applicant as one of the assailant during the alleged incident at the time of examination before the learned Trial Court. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the trial court to examine after the entire evidence is led.
41. The learned senior counsel for the applicant has argued for parity with the co-accused, Deepak Mann, who has been granted bail in the present case. However, this Court finds that the applicant’s case is distinguishable. Unlike the co-accused, the applicant has been identified by two key witnesses as a direct participant in the crime, has a documented history of criminal behaviour, and poses a greater risk of reoffending. Parity cannot be invoked in cases where the accused stand on different footings.
42. This Court granted bail to co-accused Deepak Maan by order dated 01.07.2024 on the grounds that his role in the alleged crime appeared to be peripheral. The Court noted that the key prosecution witness, Mukesh, did not identify Deepak Maan as one of the assailants who fired at the victim. Additionally, the statement of another witness, Rama, contradicted Mukesh’s account. Furthermore, the vegetable vendor, who was cited as a crucial witness, turned hostile.
43. It is pertinent to mention that while deciding the question of bail, the court must carefully balance the individual’s right to liberty with the interests of justice. While the presumption of innocence and the right to liberty are fundamental principles of law, they must be considered in conjunction with the gravity of the offence and its impact on society.
44. The charges in the present case have already been framed and the allegations, at this stage, cannot be termed as frivolous. The credibility of the defences asserted by the applicant would be assessed during the trial.
45. Recently, the Hon’ble Apex Court in the case of X v. State of Rajasthan & Anr.: 2024 INSC 909 in relation to entertaining bail applications in serious offences like rape, murder, dacoity, once the trial commences and the prosecution is examining the witnesses observed as under:
46. Accordingly, taking into account the submissions made by the learned counsel for the parties, and material available on record, this Court is of considered opinion that prima facie, there are serious allegations against the applicant which at this stage cannot be said to be without any material.
47. Considering the facts and circumstances of this case, this court is not inclined to grant bail to the applicant at this juncture.
48. The learned trial court is directed to expedite the trial and conclude the examination of witnesses to ensure that justice is served in a timely manner.
49. It is made clear that the observations made in the present case are only for the purpose of considering the bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
50. In view of the above, the present bail application is dismissed. AMIT MAHAJAN, J JANUARY 20, 2025