Shahnaz Begum v. State

1. By way of this order, I shall dispose of the present petition filed under Section 439 Cr.P.C. R/W Section 482 Cr.P.C. filed on behalf of the petitioner/applicant for grant of regular bail or in the alternative interim bail for a period of 45 days in case FIR No. 23/2018 U/s 302/323/34 IPC, registered at Police Station Khyala, Delhi.

2. Briefly stated, the facts of the case are that on 01.02.2018, at about 8:00 p.m. complainant Yashpal Saxena received a call from his friend Sh. Gulshan on his mobile No. 7011710645 informing him that some people were fighting with his son namely Ankit Saxena (since deceased) outside Blind School. On receiving the said phone call, complainant alongwith his 2021:DHC:310 wife Kamlesh Saxena rushed to the spot and on reaching the spot outside the Blind School, they saw that Akbar Ali, Shahnaz (present petitioner) his son Asif Ali (JCL) and brother-in-law Md. Salim were fighting with complainant’s son Ankit (since deceased). Complainant heard all of them saying “we will not leave you today”. Shahnaz (present petitioner) was using filthy language and was pushing as well as beating Ankit (since deceased)

3. Complainant’s wife Kamlesh Saxena tried to stop Shahnaz (present petitioner) from beating her son. Shahnaz pushed the complainant’s wife and started beating her. Complainant intervened to stop Shahnaz from beating his wife but since he is a heart patient, he was unable to stop the scuffle between Shahnaz and his wife. In the meantime, co-accused Akbar Ali, Md. Salim and Asif said “Hamari ghar ki ijjat ke sath khilvad karne ka natija tuje batate hain” and they surrounded Ankit (since deceased). Md. Salim held his right hand, Asif held his left hand and Akbar Ali pulled his hair and slit his throat with a knife. Ankit (since deceased) fell on the footpath and was removed to the hospital by the complainant and his wife. On the basis of the statement of the complainant recorded on the night on 01.02.2018, the present FIR was registered at PS Khyala.

4. I have heard the Ld. counsel for the petitioner, Ld. APP for the State and perused the Status Report filed by the state and also perused the records of the case.

5. It is submitted by the Ld. counsel for the petitioner that the fundamental of the criminal jurisprudence is the presumption of innocence. In support of this, he relied upon “Dharam Singh Vs. State of UP” (2018) 3 SCC 22. He further relied upon “Arnab Manoranjan Goswami Vs. State of Maharashtra & Ors”. SLP (Criminal) Diary No (s) 24646/2020, vide order of bail dated 11.11.2020 to urge that personal liberty of a person is paramount. He further urged that the petitioner has clean past antecedents and she is in J.C. for the last 2 years and the testimony of all material witnesses have been concluded and no purpose would be served by keeping her in J.C. He further argued that it is a settled law that bail is a rule and jail is an exception and he relied upon “Sanjay Chandra Vs. CBI” (2012) 1 SCC 40. He further argued that the petitioner has been falsely implicated and the only role assigned to her is that of giving a “lalkara”. He further argued that the testimony of PW 2 is not at all trustworthy and is contrary to the eye witness account of PW 22. He further argued that Lalkara/abetment is a weak type of evidence and no conviction can be based against the person, alleged to have exhorted the actual assailants, unless the evidence in this respect is clear, cogent and reliable. He further urged that it was the husband of the petitioner who is alleged to be the main accused in this case was the actual complainant to the police, who had made the call to the PCR which is evident from the statement of PW 15 ASI Gangadharan.

6. It is further urged by the Ld. counsel for the petitioner that PW 2 with his friends had physically assaulted the main accused Akbar Ali and Mohd. Ali, whose medical examination was conducted by PW 9 Dr. R.K. Dubey and they both were badly beaten by blunt object but no action was taken against the relatives/friends of deceased Ankit Saxena. He further urged that the petitioner is a 42 years old ailing woman and her daughter aged around 15 years is not keeping well and the petitioner is suffering from Critical Large Fibroid in her Uterus & Hypothyroidism with Kidney infection & the known case of Menorrhagia (excessive bleeding per vaginum) and Dysmenorrhea which is affecting the petitioner’s health adversely & petitioner’s health condition is critically getting deteriorated day by day.

7. On the other hand, the State has filed the status report and Ms. Rebecca M. John, SPP opposed the grant of regular bail to the petitioner on the ground that the victim was 21 years old boy, whose throat was slit by the petitioner’s husband. She further urged that the complainant’s wife tried to stop the petitioner from beating her deceased son but the petitioner pushed the complainant’s wife and started beating her. She further urged that there are specific allegations against the petitioner where she exhorted her husband that in the name of Allah, he should not spare Ankit Saxena (deceased). She further urged that Ankit Saxena (since deceased) was brutally murdered and his throat was slit by the husband of the petitioner and the petitioner was very much present there and exhorting him. She further urged that the case is at its advance stage and the role played by the petitioner has been recorded in the evidence of the eye witnesses PW 2, PW 13, PW 17 and PW 22.

8. The petitioner in the alternative is seeking interim bail for a period of 45 days on the medical grounds. On this aspect, it is submitted by the Ld. SPP that at this stage, the petitioner should not be released on interim bail on the medical grounds as she has been advised to follow up with the doctors on 27.01.2021 for the purpose of review of her reports and planning of further management.

9. Now coming to the grant of regular bail on merits. In my opinion, the petitioner does not deserve to be released on bail as at this stage, deeply analyzing the testimonies of the eye witnesses PW 2, PW 13, PW 17 and PW 22, might cause prejudice to the case of either of the parties and at the stage of bail the entire material is not to be discussed on merits. At the time of grant of bail, the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstance arising in each case. One of the circumstances to consider the gravity of the offence is also the term of sentence i.e. prescribed for the offence, the accused is alleged to have committed.

10. I have perused the judgments cited by the Ld. counsel for the petitioner but the same are differentiable and ultimately the consideration is on case to case basis of the facts involved therein.

11. In the instant case, the petitioner has been facing trial for the offence U/s 302/323/34 IPC. The case is at its final stages, therefore, keeping in view the facts and circumstances of this case, no ground for grant of regular bail is made out, so, the application as far as it relates to grant of regular bail of the petitioner is concerned, the same is dismissed.

12. Now coming to the grant of interim bail of 45 days to the petitioner on medical grounds, I have perused the medical report received from the Medical Supdt.

ABVIMS and Dr. R.M.L. Hospital dated 12.01.2021, wherein, the petitioner has been advised to follow up with histopathology reports on 27.01.2021 in the Gynae OPD at 0900 hrs. for review of reports and planning further management. Therefore, as far as the relief for grant of interim bail for 45 days is concerned, the application in this respect, is kept pending and the report from R.M.L. Hospital is awaited.

13. List on 09.02.2021.

RAJNISH BHATNAGAR, J JANUARY 28, 2021 Sumant