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IN THE HIGH COURT OF DELHI AT NEW DELHI
Vikas Mahajan, J.
Ramesh Kakkar - Appellant
Versus
State of NCT of Delhi - Respondent
Bail Appln. 1433 of 2023
Decided On : 03-01-2024
Regular Bail - Criminal Procedure - Code of Criminal Procedure, 1973, Section 439 - [302/120B/34 IPC] - The court examined the evidence to determine if the petitioner deserved to be enlarged on bail. The prosecution relied on testimonies and circumstantial evidence to establish the petitioner's involvement in a serious offence. However, the court found gaps in the prosecution's version, including uncorroborated testimonies and doubts about the oral dying declaration made by the deceased. The court also considered the petitioner's long incarceration, the pending trial, and the lack of misuse of interim bail. Ultimately, the court granted the petitioner regular bail, emphasizing the presumption of innocence at the pre-conviction stage and the need to avoid prolonged custody without a conclusion of the trial.
Fact of the Case:
The petitioner sought regular bail in a case involving charges under Sections 302/120B/34 IPC. The prosecution alleged that the petitioner conspired to eliminate a deceased Assistant Law Officer/Estate Officer, who was set to decide a matter against the petitioner. The prosecution relied on testimonies and circumstantial evidence to establish the petitioner's involvement in the offence.
Finding of the Court:
The court found gaps in the prosecution's version, including uncorroborated testimonies and doubts about the oral dying declaration made by the deceased. The court also considered the petitioner's long incarceration, the pending trial, and the lack of misuse of interim bail. Ultimately, the court granted the petitioner regular bail, emphasizing the presumption of innocence at the pre-conviction stage and the need to avoid prolonged custody without a conclusion of the trial.
Issues: The issues revolved around the sufficiency of evidence to grant regular bail to the petitioner, the reliability of testimonies and circumstantial evidence presented by the prosecution, and the petitioner's entitlement to bail considering the presumption of innocence and the pending trial.
Ratio Decidendi: The court's decision to grant regular bail was based on the gaps in the prosecution's version, doubts about the oral dying declaration, the petitioner's long incarceration, the pending trial, and the lack of misuse of interim bail. The court emphasized the presumption of innocence at the pre-conviction stage and the need to avoid prolonged custody without a conclusion of the trial.
Final Decision: The court granted the petitioner regular bail, subject to specific conditions, considering the gaps in the prosecution's version, the petitioner's long incarceration, the pending trial, and the lack of misuse of interim bail. The court emphasized the presumption of innocence at the pre-conviction stage and the need to avoid prolonged custody without a conclusion of the trial.
JUDGMENT
1. The present petition has been filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in FIR No. 445/2016 under Sections 302/120B/34 IPC registered at PS Jamia Nagar.
2. Vide order dated 02.05.2023, notice was issued in the bail application of the petitioner and the State was directed to file a status report. The State has filed a status report dated 23.05.223, the same on record.
3. The case of the prosecution as borne out from the status report is that on 16.05.2016, a PCR call vide DD No. 74-B regarding bullet fire was received in PS Jamia Nagar, which was marked to SI Pankaj Gulia, who proceeded to the spot. On reaching the spot i.e. Noor Nagar Extn. Johri Farm, SI Pankaj Gulia noticed pieces of glasses on the road and came to know that the injured had already been shifted to Holy Family Hospital.
4. On reaching the hospital, SI found injured Mohd. Moin Khan S/o Mohd Naaem Khan aged about 58 years was admitted vide MLC No. C- 16/015226. The doctor mentioned alleged history as "while he was parking his car today at around 7:40 P.M. h/o sustained 2 suspected gunshot injury to (R) upper Anterior Chest and he became unconscious immediately first attended by his wife Nishant (all history given by his wife and daughter)". On examination "Unconscious L/E (R) upper And near II Inter coastal space just lateral to mild caluicle line wound 1X1 cm nearly triangle shape irregular margins inverted wound." Thereafter, the SI tried to trace the eyewitnesses of the incident but in vain. In the meantime, at about 09:10 P.M. the doctor declared the patient as "dead". It is in this backdrop, that the present FIR came to be registered.
5. During investigation, the petitioner and other co-accused namely, Ram Phool, Israil, Saleem, Amir and Anwar Omaish were arrested on 18.05.216 and co-accused Bilal was arrested on 19.05.2016. During further investigation, it transpired that the deceased was an Assistant Law Officer/Estate Officer with the New Delhi Municipal Corporation and the recovery suit of license fee in respect of petitioner's Hotel namely, `The Connaught' was pending in the office of the deceased. It also came to light that the petitioner tried to win over the deceased by offering him hefty bribe running into crores, but the same was refused by the deceased and he had decided to proceed against the petitioner as per law.
6. It is thus, the case of the prosecution that the matter between the petitioner and the NDMC was listed on 17.05.2016 for the parties to file written arguments and seeing no other option left, the petitioner entered into a criminal conspiracy to eliminate the petitioner and for this purpose he took the help of hired killers, which was provided by the co-accused Ram Phool, PSO of the petitioner. Ram Phool (PSO) in turn gave the contract to his colleague Israel, who further passed this contract to Saleem and Aamir. Aamir then arranged the meeting of Anwar Omaish and Bilal with Israel. Anwar Omaish shot the deceased on 16.05.2016, while he was riding the pillion and Bilal was driving the motorcycle.
7. Thereafter, during investigation, weapon of offence i.e. one pistol bearing no. RP 11671 along with one live cartridge was recovered at the instance of accused Bilal from his house, as the pistol was given by Anwar Omaish to Bilal to keep.
8. Mr. D.P. Singh, learned counsel for the petitioner at the outset submits that the petitioner has been incarcerated since 18.05.2016 and has spent more than 5= years in custody. He further submits that the prosecution has sought to examine 61 witnesses out of which till date only 31 witnesses have been examined, therefore, keeping the petitioner in custody till the conclusion of trial, which is not likely to be concluded anytime soon, will not be in the interest of justice.
9. On merits, he contends that the prosecution has relied upon the testimony of PW-1 i.e. the daughter of the deceased and PW-3 i.e. the wife of the deceased to make out a case that w
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