BAIL APPLN./4701/2024 of AJAYPAL Vs THE STATE (N.C.T OF DELHI)

IN THE HIGH COURT OF DELHI AT NEW DELHI

+BAIL APPLN. 4701/2024

AJAYPAL.....PetitionerThrough:Mr. Mukesh Kalia, Mr. S. Sharmaand Mr. Rahul R. Gupta, AdvocatesThrough:Mr. Mukesh Kalia, Mr. S. Sharmaand Mr. Rahul R. Gupta, Advocatesversus

THE STATE (N.C.T OF DELHI).....RespondentThrough:Mr. Aman Usman, APP for State withInspr. Manu Dev, PS Subzi MandiThrough:Mr. Aman Usman, APP for State withInspr. Manu Dev, PS Subzi Mandi

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJAN

O R R13.02.2025

1.The present petition has been filed seeking regular bail in connectionwith FIR No. 678/2015 under Section 302/34 IPC registered at PoliceStation Subzi Mandi.

2.The case of the prosecution is that on the complaint made by thefather of deceased, namely, Sammar Vishnu, the FIR came to be registeredunder Section 306 IPC, which was subsequently converted into an offencepunishable under Section 302 IPC.

3.The allegations in the FIR are that the deceased was married to thepetitioner since 2005 and the petitioner was having frequent quarrels withher which were often resolved by the complainant. On 23.12.2015, thecomplainant’s son received call from Jyoti who assured him that she wasfine.However, on 24.12.2015 at around 3.00 a.m. complainant wasinformed by his son Tapan that Jyoti has passed away. The complainant

stated that the deceased’s in-laws either gave her something to consume orpressurised her to take an extreme step due to the dispute regarding property.4.Mr. Mukesh Kalia, learned counsel appearing for the petitionersubmits that as per the prosecution case itself, the incident is of 24.12.2015,however, the FIR came to be registered on the complaint of the deceased’sfather made on 31.12.2015.Thus, there is delay of seven days inregistration of FIR which has not been explained. He submits that initiallyon the basis of the complaint, the offence was registered under Section 306IPC which was later converted into an offence under Section 302 IPC.

5.He submits that there are two children out of the petitioner’s wedlockwith the deceased - one daughter aged about 9 years and son aged about 5years.

6.He invites attention of the Court to the chargesheet to contend that thechildren were taken away by the complainant on the date of incident itselfand the statement of the minor daughter was recorded by the police after 46days on 10.02.2016.He submits that in such situation, tutoring of theminor daughter, who has been cited as witness, cannot be ruled out.

7.He invites attention of the Court to the nominal roll to contend thatthe petitioner has already undergone incarceration of about 6 years 3 monthsand 21 days as on 16.01.2025. He submits that the petitioner was grantedinterim bail on 07 occasions including interim bail granted on therecommendations of HPC but the petitioner never misused the liberty soaccorded by this Court and always surrendered on time. He further submitsthat the prosecution has cited as many as 21 witnesses and till date only 13witnesses have been examined and this position is operating for the pastmany years.

8.He submits that the petitioner has clean antecedents and he is not on aflight risk nor there is any possibility of him influencing the witnesses in theevent he is enlarged on bail.He, therefore, urges that the petitioner bereleased on bail.

9.Per contra, learned APP appearing on behalf of the State has arguedon the lines of the status report.He submits that the daughter of thepetitioner has been examined and she has supported the case of theprosecution. He further submits that the one of the material witnesses,namely, Deepak who is brother of the deceased is under cross-examination.He, therefore, urges that the bail petition of the petitioner be dismissed.

10.I have heard the learned counsel for the petitioner as well as learnedAPP appearing for the State and have perused the material on record.

11.Though, the impact of delay in the registration of FIR and recordingthe statement of minor witness (daughter of deceased) will be considered bythe learned trial court during trial and any comment at this stage by thisCourt will adversely prejudice the petitioner as well as the prosecution,however, the fact that the incident is of 24.12.2015, the FIR came to beregistered after seven days of delay on 31.12.2015 and further the statementof the minor witness was recorded after 46 days on 10.02.2016, is materialaspect of the matter as it is trite law that delay in setting the law in motionby lodging the complaint or registration of FIR is normally viewed by courtswith suspicion because there is possibility of concoction of the case againstthe accused.[1]

12.In so far as the testimony of minor daughter of the petitioner isconcerned, the probative value of the same as well as the reliability of the

1 State of Madhya Pradesh vs. Chhaakki Lal and Anr., (2019) 12 SCC 326.

said witness will also be considered by the trial court, however, thesubmission of the learned counsel that there is possibility that his minordaughter has been tutored, cannot be negated altogether in the facts andcircumstances of the present case.

13.Further, it is not in dispute that the petitioner was released on interimbail as many as on 7 occasions and he has never misused the liberty sogranted to him. The custody period of the petitioner as borne out form thenominal roll is 6 years 3 months and 21 days as on 16.01.2025.

14.Apart from the merits of the case, another important factor which hasto be considered while deciding the bail application is the delay in thecommencement and conclusion of the trial. The prosecution has cited asmany as 21 witnesses but till date only 15 witnesses have been examined. Itis also not in dispute that this position is continuing for the past many years.Evidently, the trial will not be concluded anytime in near future and thepetitioner cannot be kept in custody to await the outcome of trial, especiallywhen at this stage there is presumption of innocence in favour of thepetitioner.

15.Further, it is not the case of the prosecution that the petitioner is atflight risk and or he has any criminal antecedents.

16.Considering the aforesaid circumstances in entirety, this Court is ofthe view that the petitioner has made out case for grant of regular bail.Accordingly, the petitioner is admitted to bail subject to his furnishing apersonal bond in the sum of Rs. 20,000/- with one surety of the like amountto the satisfaction of the concerned Jail Superintendent/Trial Court/ DutyMagistrate, further subject to the following conditions:

a) Petitioner shall appear before the Court as and when the matter istaken up for hearing.

b) Petitioner shall provide mobile number to the IO concerned whichshall be kept in working condition at all times and he shall not changethe mobile number without prior intimation to the InvestigatingOfficer concerned.

c) Petitioner shall share his permanent address with the IO and shallnot change the same without prior intimation to him.

d) Petitioner shall not indulge in any criminal activity and shall notcommunicate with or come in contact with the witnesses/family of thedeceased.

17.The petition stands disposed of in the above terms.

18.It is clarified that the observations made herein above are only for thelimited purpose of deciding the present bail application and the same shallnot be construed as an expression of opinion on the merits of the case.

19.Copy of the order be forwarded to the concerned Jail Superintendentfor necessary compliance and information.

20.Order dasti under signatures of the Court Master.

FEBRUARY 13, 2025

VIKAS MAHAJAN, J