IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on:19.02.2024

BAIL APPLN. 2639/2023

MOHD AYUB ….. Applicant

versus

STATE ….. Respondent
Advocates who appeared in this case: For the Applicant : Mr. Birendra Kumar Pandey, Mr. Santosh Kumar, Mr. Mrinal Kaushik & Mr. Neetish Kumar Pandey, Advs.

For the Respondent : Mr. Utkarsh, APP for the State Inspector Yogender Kumar & SI V. Tomar,
PS Govind Puri Mr. Vishesh Wadhwa & Ms. Dikshika Hoon, Advs. for R2 with R2 in person.

CORAM: HON’BLE MR JUSTICE AMIT MAHAJAN JUDGMENT

1.The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking grant of regular bail in FIR No. 641/2021 dated 06.11.2021 registered at Police Station Govindpuri for offences under Sections 302/201 of the Indian Penal Code,1860
(‘IPC’).

2.The present FIR was registered on the complaint of Sarath Kumar (son-in-law of the deceased) alleging that on 05.11.2021, while he along with his wife and in-laws was lighting crackers, at around 09:15 p.m., Rajender Kumar @ Tambi (deceased) went to D-287, Navjeevan Camp, Govind Puri, Delhi for gambling, where he used to go quite often. It is further alleged that at around 12:00 a.m., when the Mother-in-law of the complainant tried to call the deceased, she could not reach him and at around 01:00 a.m., the phone of the deceased was switched off. Thereafter, at around 04:30 a.m. three to four women came to the house of the deceased and told the family members that his body was lying in the drain in injured condition in front of D-102, Navjeevan Camp, Govind Puri, Delhi. When the family members reached there, they saw that the deceased was lying on his face and when they pulled him out of the drain, they found that there were knife stabs at 4-5 places on his body and he was in the stage of unconsciousness. The family members took him to Safdarjung Hospital, where he was declared ‘brought dead’. This led to registration of the present FIR and, on further investigation, it was found that the alleged incident took place at D-287, Navjeevan Camp, Govind Puri, Delhi, and one public witness, namely, Ravinder alleged that he was residing at the ground floor of his Sister-in-Law’s jhuggi and she had rented the first floor to one of the accused, Mohd. Ajaj. It is further alleged that Mohd. Ajaj and his relative, Mohd. Ayub used to run gambling house and take entry fees from the persons who
used to come for gambling. Ravinder further alleged that on the intervening night of 5th-6th November 2021, the accused persons, in connivance with each other, assaulted Rajinder Tambi to death and
wrapped his dead body in a bedsheet, dumped it into a small drain and washed the place of the alleged incident.

3. The statement of the witnesses, namely, Ravinder, Taufik Hussain, and Sunny were recorded under Section 161 of the CrPC. The chargesheet in the present case was filed under Sections 201/34 of the
IPC and, subsequently, charges have been framed against the applicant/ accused under Sections 302/201/34 of the IPC.

4.The learned counsel for the applicant submitted that the applicant has been in incarceration since 07.11.2021. He submitted that the investigation in the present case is complete and no purpose would be served by keeping the applicant in further custody.

5.He submitted that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.

6.The learned counsel for the applicant submits that the co-accused namely, Ajay @Judi has been already enlarged on regular bail by order 03.08.2023 passed by this court. The role of the present applicant is identical, if not better than what is attributed to co-accused Ajay @Judi.

7.He further submits that according to the charge sheet only the offence punishable under Section 201 of the IPC is made out against the applicant. He lastly submitted that the applicant has been incarcerated for almost two years and that he has clean antecedents.

8.Per contra, the learned Additional Public Prosecutor for the State opposed the grant of bail to the applicant on the ground that there are grave and serious allegations against the applicant, and the investigation clearly reveals that the applicant along with other accused persons hatched a criminal conspiracy to commit the murder of Rajinder Kumar @ Tambi (deceased), inflicted/ stabbed with knife upon various parts of his body with the intention to cause death.

ANALYSIS

9.The present FIR was registered on a PCR call from the daughter of the deceased.

10.During the investigation, public witness, namely, Ravinder, gave a statement under Section 161 of the CrPC, that he saw the accused namely, Suraj Nepali, and the accused namely, Niranjan, coming down the stairs from the first floor with a knife. When he went upstairs, he saw the deceased in an injured condition. He specifically mentioned that the accused- Suraj Nepali was holding the knife.

11.He further stated that Niranjan, thereafter, told other co-accused persons that they should clean the room where the incident took place. He specifically stated that the other co-accused, on being asked by the accused Niranjan, then went to the first floor and the witness namely, Ravinder also accompanied where he saw that the accused Shiva took the knife from Suraj Nepali and again inflicted wound on the neck of the deceased. Thereafter, the other co-accused persons, on instructions
from the accused Niranjan, wrapped the body of the victim in a sheet and went away.

12.The statement of another witness, Taufik Hussain, has been recorded under Section 161 of the CrPC, wherein he stated that the deceased had lost money, and he had sent the applicant to his house to
get money. Since the money was not given by his family, the deceased and Niranjan had an argument.

13.He also categorically stated that Niranjan had sent the applicant and other co-accused persons, downstairs while he was arguing with the victim.

14.It is significant to note that the case of prosecution essentially rests upon the statement of the witnesses, Ravinder and Taufik Hussain. The statement given, at this stage, points towards the argument between the accused Niranjan, and the deceased.

15. It also, at this stage, reflects that the applicant was not present at the place of the alleged incident when the injuries were inflicted by the accused Niranjan / Suraj Nepali.

16.At this stage, the allegations against the applicant, point towards an offence punishable under Section 201 of the IPC, which attracts the maximum punishment of upto seven years.

17.The Court, while considering the application for grant of bail, has to keep certain factors in mind, such as, whether there is a prima facie case or reasonable ground to believe that the accused has committed the offence; the nature and gravity of the accusation; severity of the punishment in the event of conviction; the danger of the accused absconding or fleeing if released on bail; reasonable apprehension of the witnesses being threatened; etc.

18.From the material relied upon by the prosecution, the non- involvement of the applicant in the offence under Section 302, cannot be ruled out. The same would be the subject matter of trial and cannot be, prima facie, held to be made out against the applicant.

19.It is not disputed that the applicant has clean antecedents. The applicant has been in custody since 07.11.2021. The other co-accused, Ajaj @ Judi, whose role has also been alleged to be similar to the
present applicant, was granted bail by this Court by order dated 03.08.2023. The apprehensions of the witnesses being threatened or the likelihood of the applicant fleeing if released on bail can be taken care of by putting appropriate conditions.

20.Considering the aforesaid, the applicant is directed to be released on bail on furnishing a personal bond for a sum of ₹50,000/- with two sureties of the like amount, subject to the satisfaction of the learned Trial Court/ Duty MM / Link MM on the following conditions:

a. The applicant shall under no circumstances leave the boundaries of the National Capital Region without informing the Investigating Officer;

b. The applicant shall appear before the learned Trial Court on every date of hearing;

c. The applicant shall, upon his release, give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times;

d. The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever.

21.In the event of there being any FIR/DD entry / complaint lodged against the applicant, it would be open to the State to seek redressal by filing an application seeking cancellation of bail.

22.It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the Trial and also not be taken as an expression of opinion on the merits of the case.

23.The bail application is allowed in the aforementioned terms.

AMIT MAHAJAN, J FEBRUARY 19, 2024 UG / KDK Signature Not Verified Digitally Signed
By:SANJAY KUMAR Signing Date:19.02.2024 22:01:56 BAIL APPLN. 2639/2023