BAIL APPLN./1915/2015 of SATBIR RANA @ GHENTA Vs STATE ( GOVT OF NCT DELHI)

*IN THE HIGH COURT OF DELHI AT NEW DELHIJudgment delivered on : 11 March 2016

+BAIL APPLN. 1915/2015SATBIR RANA @ GHENTA

..... Petitioner

Through:Mr. Ramesh Gupta, Senior Advocatewith Mr. Anil Rana, Mr. AshishPratap Singh, Advocates

versus

STATE ( GOVT OF NCT DELHI)

..... RespondentThrough:Mr. Rajat Katyal, Additional PublicProsecutor for the State with InspectorA.K. Singh, Police Station Ghazipur,DelhiCORAM:HON'BLE MR. JUSTICE P.S.TEJIJUDGMENT%P.S. TEJI, J.

1.By this petition filed under Section 439 of Code of CriminalProcedure, 1973 (hereinafter referred to as the Cr. P.C.) the petitionerseeks bail in FIR No.507/2014 under Section 302/34 of IPC, at PoliceStation Gazipur, Delhi.

2.In nutshell, the prosecution case is that the complainant –Sanjay Kumar on 21.07.2014 received the information that his brotherVinod Kumar was murdered. Sanjay Kumar, the complainant lodged

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Bail Appl. No.1915/2015

case expressing suspicion over Nazim and Shakir. The reason forsuspecting them for murder was that earlier also, the aforesaid personsnamely Nazim and Shakir had caused injuries to another cousin of [REDACTED] of the case, one Ravi Chopra made statement beforethe police that some days prior to the date of incident, one Nikhil Ranawas spotted near the place of occurrence. Due to of the suspicionveering around Nikhil Rana, he was arrested. After his arrest, NikhilRana made disclosure statement that it was at his instance that thedeceased was killed. Other materials which have been brought onrecord against the petitioner are that the petitioner had misled thecomplainant by raising suspicion against others and he was bearinggrudge against the deceased as he suffered loss in the elections forthe post of Pradhan at the hands of the deceased.

3.Mr. Ramesh Gupta, learned Senior Counsel for the petitionercontended that in the FIR recorded at the instance of Sanjay Kumar, itis stated that there was enmity between the deceased Vinod withNazim and Shakir who are resident of Gazipur Dairy Farm and theyhad caused injuries in the past to his cousin brother namely Lala @Rajveer, in respect of which criminal case No.437/2014 with PoliceStation Gazipur, Delhi was also registered. But still the petitioner aswell as Nikhil Rana, Satbir and two other persons were charged forthe offence punishable under Section 120-B read with Section 302 ofIPC and wgereas Nazim, Shakir and Rashid were discharged despitethey were named by the complainant in the FIR.

Bail Appl. No.1915/2015

4.The petitioner had also filed two separate revision petitionsagainst the order on charge dated 23.04.2015, whereby the learnedAdditional Sessions Judge had discharged the persons, who werenamed by the complainant in the FIR and framed the charge againstthree accused namely, Satbir Rana, Parth Sharmaq and Nikhil Rana,under Section 120-B read with section 302 IPC. In addition, thepetitioner is also charged with the offence punishable under Section201/202 of IPC. However, during the course of arguments, the learnedcounsel for the petitioner, on instructions, withdrew the revisionspetitions and confined his arguments on the present bail application ofthe petitioner.

5.Learned Senior Counsel for the petitioner contended that thepetitioner was arrested on 15.10.2014 and there is no material onrecord, prior to the arrest and disclosure of Nikhil Rana, about thepetitioner’s involvement in the matter. While pressing for bail, learnedcounsel for the petitioner submitted that assuming the aforesaidallegation to be exfacie true, the petitioner could only be said to havecommitted an offence under Section 201 of the IPC. At best, thepetitioner could be said to be conspirator, regarding which also theevidence, as has been alleged, is highly deficient.

6.Learned Senior Counsel for the petitioner also contended thatthe case of the prosecution is based purely on circumstantial evidenceand there is no direct evidence against the petitioner. The furthercontention raised on behalf of the petitioner is that the prosecution hasnot filed any CDR in respect of mobile phone being used by the

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deceased Vinod and in such situation the prosecution cannot reach tothe conclusion that the alleged persons were involved in theconspiracy to kill Vinod. Apart from the above, it is further contendedthat no statement of any witness from the Gym such as Manager,Instructor or other trainees has been recorded to the effect that thedeceased Vinod had actually attended the Gym classes on 21.07.2014in the evening.

7.Apart from the aforesaid contentions, during the course ofarguments, learned Senior Counsel for the petitioner relied upon thejudgments in Baliya alias Bal Kishan vs. State of Madhya Prades,2012(9)SCC696; Saju vs. State of Kerala, 2001 SCC Cri 160; IndraDalal vs. State of Haryana, 2015 (3) JCC 1893; In re: Mottai Thevarvs. State of Madras, AIR 1952 MAD 586; Pulukuri Kottaya andothers vs. Emperor, AIR 1947 PC 67; Prashant Bhaskar vs. State2014 (1) JCC 750; Yogesh vs. State of Maharashtra 2009 (1) SCCCri 51 on the point of charge and conspiracy.

8.At last, learned counsel for the petitioner contended that in thefacts and circumstances of the present case, the petitioner can be heldguilty only for the offence punishable under Section 201/202 of IPC,which are bailable offence, therefore, the petitioner ought to begranted bail in the present case.

9.Mr. Rajat Katyal, learned Additional Public Prosecutor for theState vehemently opposed the aforesaid contentions raised on behalfof the petitioner and submitted that the charge sheet in this case has

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been filed and charges against the petitioner alongwith other co-accused persons are of serious nature, and not only this, the petitioneris also charged with the offences punishable under Section 201 and201 of IPC. Therefore, the petitioner be not granted bail in the presentfacts and circumstances of the case.

10.Learned Additional Public Prosecutor for the State referred tothe status report filed in the present case, in which it is submitted onbehalf of the State that one Ravi Chopra made statement before thepolice that some days prior to the occurrence, one Nikhil Rana wasspotted near the place of occurrence. Due to the suspicion veeringaround Nikhil Rana, he was arrested. After his arrest, Nikhil Ranamade disclosure statement and supplementary disclosure statementto the effect that he had strong apprehension that deceased Vinod maykill his father Satbir Rana and he hatched plan for murder of VinodPahalwan. He also disclosed that in conspiracy with his father and hisfriend Parth Sharma and his cousin brothers (mama ke ladke) Rupeshand Brijesh, he planned to kill Vinod. He brought the pistol and fivelive cartridges from his cousin brothers Rupesh and Brijesh about twomonths ago from the day of incident and gave the pistol and 5 livecartridges to his father. His father tracked the activities of deceasedVinod and when he saw that Vinod was going to Gym alone on21.07.2014, his father gave the pistol and 5 live cartridges to him andtold him to finish Vinod and he will manage the situation. He alsodisclosed that after committing murder, he gave the pistol to his father(petitioner herein) who kept it in the almirah under the cloths. The

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petitioner also asked him to cut his hair short and destroy the CCTVfootage and DVR.

11.Thereafter, the investigation proceeded in this direction andmotor cycle used in the offence was recovered at the instance of co-accused Parth Sharma and weapon of offence i.e. Pistol alongwith twolive cartridges were recovered from the house of Nikhil Rana. Duringinvestigation, one led (bullet head) was recovered from the body of thedeceased during PME, one empty cartridge (khali khol) and two led(bullet head) were recovered from inside the vehicle used by thedeceased. All the seized ammunition and weapon of offence were sentto CFSL for expert opinion.

12.The State has further informed that the ballistic expert vide hisreport dated 16.02.2015 opined that two 7.65 bullets recovered fromthe vehicle in which the murder took place and one 7.65 mm bulletfound in the dead body of the deceased had been fired from 7.65 mmcountry made pistol recovered at the instance of Nikhil, son of SatbirRana. It is further informed that the complainant Sanjay Kumar hasstated in his supplementary statement that it was the petitioner whoinstigated him to give the statement against Nazim, Shakir and Rashidand to lodge an FIR by name against those three persons, who,however, are discharged by the learned Additional Session Judge.

13.The State has further informed that there was pardhani issueand Gazipur Dairy issue, due to which the petitioner had grudgeagainst the deceased for having suffered loss in the elections for the

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post of Pradhan.The Status report further discloses that there aretotal 37 witnesses (16 public witnesses, 21 government/policeofficials) out of which three witnesses have been partly examined andall the witnesses supported the prosecution case and the other materialwitnesses are yet to be examined.

14.I have heard the submissions of learned Senior Counselappearing on behalf of the petitioner as well as the submissions oflearned Additional Public Prosecutor for the State and also gonethrough the material placed on record.

15.For careful scrutiny of the case, this Court has gone through thecontents of the petition as well as FIR, the disclosure statements madeby the petitioner, the impugned order rejecting bail to the petitionerand the order on charge, and this Court observes that the petitioner hasbeen charged with the offence punishable under Section 120-B readwith section 302 of IPC. He is also additionally charged with theoffence punishable under Section 201 and 202 of IPC.

16.This Court further observes that in the disclosure statement, thepetitioner had admitted that the deceased Vinod was his cousin inrelation and he had enmity with Vinod, as Vinod had defeated him inelection of Pradhan and family members of Vinod insulted him andthreatened to kill him. The petitioner also admitted that on 21.07.2014,his son Nikhil, shot dead Vinod. The petitioner also confessed that tosave his son, he got the hair of his son cut and also deleted therecording of CCTV so that the footage of Parth Sharma arriving at our

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residence could not be found. The pistol used by his son wasconcealed and he also misguided the police. The pistol used by his sonwas kept under the cloths in Almirah in his room, which he could getrecovered.

17.In the charge sheet filed on behalf of the State, it is specificallymentioned that the post mortem of the deceased Vinod was conductedat LBS Hospital and Dr. Vinay Kumar Singh, Forensic Medicine, LBSHospital had opined the cause of death being ‘shock due to fire arminjuries’. This Court further observes that the investigation regardinginvolvement of Rupesh and Brijesh is still pending and NBWs havebeen issued against them.

18.So far as the judgments relied upon by the learned SeniorCounsel for the petitioner are concerned, all the judgments relate tothe cases determined at the final stage. The fact is that the chargeshave been framed against the petitioner and material witnesses are yetto be examined and at this stage, when the petitioner has been chargedwith the offence punishable under Section 120-B read with section302 of IPC and in addition, charged with the offence punishable underSection 201 and 202 of IPC, what the court is required to see is, as towhether the prima facie case is made out for grant of bail to thepetitioner or not.

19.In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14SCC 496, the Hon’ble Supreme Court dealt with the basic principleslaid down in catena of judgments on the point of granting bail. TheCourt proceeded to enumerate the factors:

Bail Appl. No.1915/2015

9. ... among other circumstances, the factors [which are]to be borne in mind while considering an application forbail are:

(i)whetherthereisanyprimafacieorreasonablegroundtobelievethattheaccused had committed the offence;reasonablegroundtobelievethattheaccused had committed the offence;

(ii)nature and gravity of the accusation;

(iii)severity of the punishment in the event ofconviction;conviction;

(iv)danger of the accused absconding or fleeing,if released on bail;if released on bail;

(v)character, behaviour, means, position andstanding of the accused;standing of the accused;

(vi)likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnessesbeing influenced; andbeing influenced; and

(viii) danger, of course, of justice being thwartedby grant of bail.by grant of bail.

20.In light of the facts and circumstances of the present case, thisCourt is of the view that the allegations against the petitioner are veryserious in nature, in which the petitioner’s involvement is to instigatethe complainant to lodge FIR against Nazim, Shakir and Rashid, andalso kept the weapon of offence in the almirah under the cloths, healso suggested the co-accused (his son) to cut his hair short anddestroy the CCTV footage and DVR. Besides this, the materialwitnesses are yet to be examined, therefore, this Court is not inclinedto grant bail to the petitioner – Satbir at this stage. Accordingly, the

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bail application filed by the petitioner is hereby dismissed. However,the Trial Court is directed to examine all the material public witnessesexpeditiously preferably within period of four months and thepetitioner would be at liberty to apply for his bail afresh before theTrial Court after the expiry of the period of four months.

21.Before parting with the order, this Court would like to place iton record by way of abundant caution that whatever has been statedhereinabove in this order has been so said only for the purpose ofdisposing of the prayer for bail made by the petitioner. Nothingcontained in this order shall be construed as expression of finalopinion on any of the issues of fact or law arising for decision in thecase which shall naturally have to be done by the Trial Court seized ofthe trial.

22.With aforesaid observations, the present bail application standsdisposed of.

MARCH 11, 2016pkb

P.S.TEJI, J