Full Text
HIGH COURT OF DELHI
SHIVAM SHUKLA .....Petitioner
Through: Mr. Samuel Mathew and Ms. Seema, Advs.
Mr. Arun Kumar Dean, Adv.
Through: Mr. Satish Kumar, APP for State
Inspector Brahmadutta Vishnoi, PS Ghazipur
JUDGMENT
1. The present petition has been filed under section 439 of the Code of Criminal Procedure, 1973[1], seeking enlargement of the petitioner on regular bail in connection with FIR no. 288/2019 registered at Police Station Gazipur, Delhi, registered under Sections 302/34 of the Indian Penal Code, 18602.
2. As per the contents of the chargesheet that has been placed on record, the crime in question took place on the night of 26.08.2019.That night, the complainant’s behenoi (sister’s husband) and cousin along with one other person were consuming alcohol at a textile factory, which was owned by one amongst the four of them. “CRPC” hereinafter “IPC” hereinafter
3. They left the factory at around 10.45 pm on a bike and halted near a temple in the locality.Agreeing to purchase more alcohol, two of them left on the bike and the other two persons (complainant and the deceased) remained at the spot. The complainant, after answering nature’s call, states that he saw a black motorcycle arrive at the scene of the crime, upon which three persons were seated.Out of these three persons, the third person seated at the back of the motorcycle wassaid to have been holding a knife.
4. One of the men on the motorcycle grabbed hold of the complainant’s companion/ deceased, while the one with the knife is reported to have stabbed him. The complainant immediately called his friends who had left on their motorcycle to purchase alcohol, and these friends arrived at the spot and took the victim to the hospital.
5. Upon the complainant reaching the hospital himself, it became known to him that the victim had succumbed to his injuries. The postmortem report of the victim revealed that the cause of his death was “shock and haemorrhagic shock due to ante-mortem stab injury to liver sufficient to cause death in ordinary course of nature.” Amongst the three co-accused persons, the petitioner is stated to have been the one who stabbed the deceased.
6. The petitioner was arrested on 04.09.2019. He approached the Court of ASJ-2, Special Judge (NDPS) East, KKD Courts seeking grant of regular bail. In this order dated 07.08.2024, it was observed that an earlier bail application filed by the petitioner was dismissed vide order dated 31.07.2021, and that the same had been concealed. The Court noted that both eyewitnesses had identified the petitioner as the person who stabbed the deceased, and that his CDR records corroborate the same.
7. Learned counsel appearing on behalf of the petitioner, Mr. Arun Kumar Dean, commences his submissions by drawing this Court’s attention to the testimony of Mr. Budh Sen, complainant in the subject FIR and PW-2. He submits that there is a material contradiction between the complainant’s deposition and his account of events as recorded in the subject FIR, to the extent that the FIR records that of the three co-accused who arrived at the scene of the crime on a motorcycle, one of them held the deceased while another stabbed him. However, the complainant’s testimony records that not one, but two of the three accused held the deceased while the third stabbed him.
8. On a query by the Court, Mr. Dean candidly admits that though contradictions may seem to arise with respect to the role of the other two co-accused persons, the cross-examination of Mr. Budh Sen/PW- 2 unequivocally assigns the role of stabbing the deceased to the present petitioner.
9. Mr. Dean submits that the petitioner has undergone a lengthy incarceration period of about 6 years, while the trial remains at the stage of prosecution evidence, with only 16 out of 29 witnesses examined till date.
10. He brings to this Court’s attention the judgment of the Hon’ble Supreme Court in Tapas Kumar Palit v State of Chhattisgarh, and places reliance on the same to argue that a 6–7-year incarceration period with trial still pending at the stage of prosecution evidence is a ground for the accused to be released on bail.
11. He also submits that the present the crime was a result of sudden provocation, and no intention existed on the part of the petitioner to kill the deceased, stating that the deceased was actually mistaken for someone else.
12. Attention of this Court is brought to the narrative that this dispute actually began with the other two-accused and a momo vendor near the crime scene at around 11 pm that night, as also recorded by virtue of another witness’ testimony. It is submitted that after a heated exchange of words with this momo vendor, third parties stepped in and asked the two co-accused to disperse from the area as they were causing a commotion. It is on this interference by third parties in the other co-accused’s argument with said momo vendor that they were prompted to leave the spot and return with the petitioner, intending to teach the interfering third parties a lesson.
13. Through this, Mr. Dean wishes to demonstrate that the deceased was never the intended target for their act of violence, and that the same is a case of mistaken identity coupled with grave and sudden provocation under the influence of alcohol, begging the inference that at the prosecution’s best case, the crime was one of culpable homicide not amounting to murder.
14. Lastly, he submits that the evidence of PW-2 constitutes hearsay and would not be admissible to convict the petitioner.
15. Learned APP appearing on behalf of the State, Mr. Satish Kumar, submits that both, the knife allegedly used by the petitioner to stab the deceased, as well as the motorcycle utilised by the accused persons to arrive at and flee from the scene of the crime, have been recovered.
16. He also submits and that the petitioner has been identified in TIP proceedings, and that, therefore, a strong prima facie case has been made out regarding injury to the deceased having been inflicted by the petitioner.
17. Lastly, Mr. Kumar submits that PW 2 is a star witness in the prosecution’s case.
18. Learned counsel appearing for the kith and kin of the victim supported the submissions of the learned APP and reiterated that the petitioner clearly had an intent to kill, and that a case of mistaken identity coupled with the accused persons acting under the influence of alcohol did not mitigate the circumstances leading up to the deceased’s death.
19. Heard learned counsel for the parties and perused the record.
20. Dealing with submissions in a sequential order, this Court first draws its attention to the submission of Mr. Dean to the extent of material contradictions in the testimony of P-2/complainant Mr. Budh Sen.
21. As noted earlier, a reading of his entire testimony makes it clear that inconsistencies, if any, may pertain to the role of the other two coaccused. There has been an unequivocal stance by him regarding the role of the petitioner being the one who inflicted a knife wound on the deceased.
22. Turning now to the argument of the petitioner’s protracted trial, and Mr. Dean’s reliance on the judgment of Tapas Kumar Palit, this Court deems it appropriate to weigh the lengthy period of incarceration against the existence of a strong prima facie case against the petitioner.
23. Both eyewitnesses have supported the case of the prosecution, the knife used to inflict the deceased’s wound has been recovered along with the motorcycle used by the co-accused persons to travel to and from the scene of the crime. The petitioner herein has been identified during TIP proceedings and eyewitnesses corroborate that it was the petitioner who stabbed the victim.
24. Considering the facts before the Hon’ble Supreme Court in Tapas Kumar Palit, paragraph 6 of the judgment highlights the lengthy list of prosecution witnesses, totalling to 100, of which only 42 had been examined. In fact, paragraph 11 of the judgment even poses a question to the prosecution as to why 100 witnesses even need to be examined and unequivocally lays down that the sheer number of witnesses results in an indefinite delay in the conclusion of trial.
25. This is evidently not the case here, as only 13 witnesses remain to be examined in the present matter. Furthermore, delay in trial cannot be, per se, a pass guaranteeing bail. As noted by the Hon’ble Supreme Court in Dipak Shubashchandra Mehta v CBI[3], a delay in trial is unfortunate, and deprivation of the accused’s liberty in the absence of conviction is to be deprecated, but this factor ought not to be applied to all cases mechanically.
26. It must be weighed against other factors, such as the accused’s ability to influence/tamper with witnesses/evidence, his likelihood of being present during trial, and whether a prima facie case exists to the extent of his/her involvement in the commission of a crime and the gravity of the offence in question, measurable by the quantum of punishment prescribed.
27. Mr. Dean also chose to advance submissions regarding the accused being charge sheeted under IPC Section 302, arguing that the facts, if resulting in conviction, would amount to culpable homicide not amounting to murder at best.
28. However, this argument holds no water at the stage of bail. Any observations by this Court on the subject of charges against the petitioner would inevitably prejudice the learned Trial Court, usurping it of its role and responsibility. Therefore, this argument may be pressed at the appropriate stage, during trial.
29. Lastly, with respect to the testimony of PW-2/complainant Mr. Budh Sen constituting hearsay, it appears, from the face of the record, that PW-2 was present at the scene of the crime. Therefore, his testimony cannot be discarded as hearsay at the stage of bail.
30. Prima facie, the testimonies indicate that Section 60 of the Indian Evidence Act, 1872, stands satisfied. However, at the current stage of bail, the same cannot be determined with complete certainty. Any further scrutiny of PW-2’s testimony would amount to determining its merit, and the same is an exercise to be conducted by the learned Trial Court.
31. Apart from PW-2 being present at the scene of the crime, and as noted in the petitioner’s last bail dismissal order dated 07.08.2024, there is one other eyewitnesses to the crime who has supported the case of the prosecution. He deposed a sequence of events that align with that which was deposed by PW-2/ Budh Sen. Furthermore, PW-2 is submitted by the learned APP to be a star witness, and no credible grounds have made out, prima facie, to discard his testimony.
32. Owing to the fact that a strong prima facie case stands made out against the petitioner, this Court is not inclined to enlarge him on regular bail.
33. However, a request is made to the learned Trial Court to expedite the petitioner’s trial owing to his lengthy period of incarceration.
34. No observations made herein shall construe a determination of the petitioner’s innocence/guilt, and the same shall not prejudice the learned Trial Court in any manner.
35. This petition, along with pending applications, if any, stands dismissed.
36. The judgment be uploaded on the website forthwith. AJAY DIGPAUL, J. NOVEMBER 6, 2025/gs/av