$~1
*
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 03.01.2024
+
BAIL APPLN. 1433/2023
RAMESH KAKKAR
Through:
versus
STATE OF NCT OF DELHI
Through:
….. Petitioner
Mr. D.P.Singh with Mr. Nipun
Katyal, Ms. Anam Siddiqui, Mr.
Naved Ahmed, Mr. Surya Pratap
Singh Rana & Ms. Kismat Chauhan,
Advs.
….. Respondent
Mr. Aashneet Singh, APP for State
with Insp. Subhash Chand, PS Jamia
Nagar.

CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
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
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.01.2024
18:32:53
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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. C16/015226. 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 Anv 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
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ASWAL
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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 5½ 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 while the deceased was being
transported to the hospital by a car in an injured condition, the deceased
disclosed to PW-1 and PW-3, who were sitting on the back seat, that the
assailants were acting at the behest of the petitioner. According to Mr.
Singh, the version of said witnesses is not corroborated by PW-8, who was
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ASWAL
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driving the said car, which makes the statement of PW-1 & PW-3, who the
interested witnesses, unreliable.
10.

He submits that the testimonies of PW-1 and PW-3 is contrary to the
history given by PW-1 and PW-3 and recorded on the MLC No. C16/015226, wherein it is mentioned that after sustaining two gunshot
injuries, the deceased had become unconscious, which creates doubt about
the so-called oral dying declaration made by the deceased to PW-1 and PW3, when he was being taken to the hospital in the car by them.
11.

He also submits that it is the case of the prosecution in the
chargesheet that the SI, who proceeded to the spot of the incident found
broken pieces of glass on the road. This according to Mr. Singh, makes it
luminous that the window pane of the car was closed when the alleged
incident took place and the petitioner could not have heard any alleged
utterance made by the assailants showing the complicity of the accused in
the crime.
12.

Further, the attention of the Court was drawn to the testimony of R.

Venkatesh, who was the CEO of Hotel Connaught and was examined as
PW-11 to contend that no motive for committing the offence can be
attributed to the petitioner as the petitioner had no grievance against the
deceased. Further, it is submitted that the matter was listed for 17.05.2016
and the said date was fixed for the purpose of filing written submissions and
not for pronouncement of order.
13.

In respect of the CDR’s which are sought to be relied upon by the
prosecution, it is the contention of Mr. Singh that no reliance can be placed
upon the CDRs of the petitioner to make out the case that he was
telephonically in touch with co-accused Ram Phool, as it is the prosecution’s
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ASWAL
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own case that co-accused Ram Phool was the PSO of the petitioner. Further,
he also submits that the CDRs between co-accused Ram Phool and Israel
cannot be safely relied upon as Israel had worked for Ram Phool previously.
14.

He submits that the investigation in the present matter is complete and
no further recovery is to be made from the petitioner, in as much as, the
main chargesheet along with supplementary chargesheets dated 10.08.2016,
18.08.2016, 21.09.2016 and 08.12.2016 stand filed.
15.

It was also contended by Mr. Singh that the petitioner is suffering
from various medical ailments which are well documented in the form of a
medical report of the Jail Superintendent and this shall inure to the benefit of
the petitioner.
16.

Placing reliance on the decision of the Hon’ble Supreme Court in
Akhtari Bi (Smt) v. State of M.P., (2001) 4 SCC 355, Mr. Singh contends
that the view has been taken by the Supreme Court that even post-conviction
for the offence under section 302 IPC, the court should consider suspending
sentence of the convict after the convict has undergone sentence of five
years.
17.

He submits that the petitioner was enlarged on interim bail on four
occasions and that it is not the case of the prosecution that the petitioner has
misused the liberty granted to him and he has always surrendered on time.
18.

It is in this backdrop, it is urged by Mr. D.P. Singh, learned counsel
for the petitioner that he may be enlarged on regular bail.
19.

Per Contra, the learned APP appearing on behalf of the State has
argued on the lines of the Status Report. He submits that the petitioner has
been accused of a grave and serious offence, therefore, he may not be
enlarged on bail.
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.01.2024
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20.

He submits that as per FSL report No. FSL 2016/F-5137 dt.

20.04.2017, the bullet (projectile) recovered from the body of the deceased
was fired from the pistol which was recovered at the instance of co-accused
Bilal.
21.

He further submits that the CDRs and tower location of the mobile
numbers of all the accused persons was analyzed, which establishes their
involvement. The attention of the Court was also drawn to the following
previous involvements of the petitioner:
a)
FIR No. 445/2016, Dt. 16.05.2016, U/s. 302/120B/201/411/34 IPC
and 25/27 Arms Act, P.S. Jamia Nagar.
b)
FIR No. 463/2002 U/s. 285/304A IPC, PS: Mandir Marg, New Delhi.

c)
DA1-1998-A-0025 Dt. 15.04.1998 U/s. 120B/406/420/468/471/511
IPC & Sections 13(2)/13(1)(d) of PC Act registered by the ACB/CBI.
22.

Lastly, it is submitted by the learned APP that the petitioner is a man
of means and he can tamper with the evidence and influence material
witnesses to depose in his favour and might also flee from the course of
justice to avoid punishment.
23.

I have heard the learned counsel for the petitioner, as well as, the
learned APP and have also perused the record.
24.

At the stage of granting bail, a detailed examination of evidence and
elaborate documentation of the merit of the case need not be undertaken,
however, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the accused is
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ASWAL
Signing Date:03.01.2024
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charged of having committed a serious offence. Any order devoid of such
reasons would suffer from nonapplication of mind.1
25.

Accordingly, the evidence which has come on record is being
examined only for the limited purpose of indicating the reasons for arriving
at the conclusion as to whether the petitioner deserves to be enlarged on bail
or not.
26.

The motive attributed to the petitioner is that the deceased was acting
as an Estate Officer in a case pending against the hotel of the petitioner and
the deceased was set to decide the matter against the petitioner.
27.

Apart from the circumstantial evidence, the prosecution is relying
upon the testimonies of the daughter (PW-1), wife (PW-3) and Mujibul @
Bul (PW-8), the person who drove the car in which the deceased was taken
to the hospital.
28.

The daughter of the deceased (PW-1) stated in her examination-in-
chief that when she saw her father in an injured condition and he was not
speaking but he was alive. However, when she enquired from her father, he
stated that two persons had come on bike and the pillion rider shot him and
before that he said that “saale tujhe Connaught Hotel ke malik Kakkar ke
paise toh pasand nahi aaye, ab goli pasand aayegi” It is also in the
testimony of PW-1 that after making oral dying declaration, the deceased
closed his eyes and died at Holy Family hospital while being treated. The
relevant part of the examination-in-chief of the daughter of the deceased
(PW-1) recorded on 07.07.2017 reads as under:“On 16.05.2016, at around 05:30 PM, I came home from my
1
Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528
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Digitally Signed
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ASWAL
Signing Date:03.01.2024
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college and at that point of time my mother and two younger
sisters were present at home. Our house is at First Floor, at
around 07:30 PM, Mubijul @ Bul, who stayed at our house
and help us in our household work and used to call my father
uncle and my mother aunty and he came to our home in
nervous condition and informed us that “uncle ko goli maardi
hai”. I along with my mother came running downstairs and
saw that in the lane in front of D-10, my father was sitting on
driver seat in injured condition in our car Swift Dezire
bearing No. DL-2CAP-4026. He was bleeding from wound
on the right side of his chest. At that point of time, he was
not speaking, but was alive. Thereafter, with the help of
neighbours, we shifted at him at the back seat of the car and
rushed towards Holy Family Hospital. Inside the car, I was
sitting on the left side and my mother was sitting on the right
side with my father sitting between us and we were holding his
body. Mujibul @ Bul was driving the car.
xxxx
xxxx
xxxx
On his way to Hospital, upon my inquiry, my father told me
that two boys had come on a bike and the pillion rider had
shot him with a bullet and before that he said “saale tujhe
Connaught Hotel ke malik Kakkar ke paise toh pasand nahi
aaye, ab goli pasand aayegi”. We tried to ask him more, but
he kept quiet and closed his eyes. We took him to Holy
Family Hospital for treatment, where he expired during his
treatment.”
(emphasis supplied)
29.

To the same effect is the statement of PW-3. The relevant part of the
examination-in-chief of PW-3 recorded on 07.10.2017 reads as under:
“When we reached near Ilka store, my husband opened his
eyes and told us that two boys had come on a bike and the
pillion rider had shot him. Before Shooting he had also utter
the following words to my late husband : – “Saale tujhe
Cannought Hotel ke Malik Kakkar ke paise to pasand nahi
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.01.2024
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aaye, ab goli pasand aayegi”. We reached at Holy family
hospital with my injured husband where he had succumbed to
his injuries during treatment.”
30.

The relevant part of the examination-in-chief of independent witness
Mujibul @ Bul (PW-8) recorded on 12.07.2018 reads as under:“I sat on driving seal whereas aunty and Ikra were on the right
and left side of the deceased. Shakib uncle met us on the way.
Shakib uncle cleared the way by giving signal of hand. There is
on Ilka Store. Uncle uttered some words as aunty was asking
what has happened but I could not hear the same as my
attention was to drive the vehicle.”
(emphasis supplied)
31.

Undoubtedly, PW-1 and PW-3 are the daughter and wife, respectively
of the deceased, therefore, being close relatives of the deceased, they are the
witnesses who might have an interest in the success of the prosecution’s
case. A collective reading of the testimony of PW-1, PW-3 and PW-8
reveals that the statement of PW-1 and PW-3 to the effect that the assailants
were acting at the behest of the petitioner has remained uncorroborated by
the testimony of PW-8, who failed to hear the alleged utterance or the socalled dying declaration made by the deceased, despite being in close
proximity.
32.

The testimonies of PW-1 and PW-3 is contrary to the history given by
them and recorded on the MLC No. C-16/015226, wherein it is mentioned
after sustaining two gunshot injuries, the deceased had become unconscious.
Even PW-1 at one stage of her examination-in-chief stated that the deceased
was not speaking though he was alive. Further, it appears that the deceased
when he was examined in the hospital, he was still unconscious. This creates
doubt as to whether the deceased regained consciousness in the car while
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ASWAL
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being taken to the hospital and whether he was in the fit state to make socalled oral dying declaration as stated by the PW-1 and PW-3. However, this
aspect will be considered by the Trial Court in depth at an appropriate stage
with reference to the MLC, medical record and other evidence that may be
proved on record, in light of the fact that the oral dying declaration herein
has not been made before the Doctor, Executive Magistrate or Police
Official, but to the family members of the deceased.
33.

In so far as the oral dying declaration is concerned, it is trite law that
such a dying declaration has to be treated with care and caution since the
maker of the statement cannot be subjected to any cross-examination.
Reliance in this regard is placed on Arun Bhanudas Pawar vs State of
Maharashtra (2008) 11 Supreme Court Cases 232, wherein it was held as
under:
“25. It is well-settled law that the oral dying declaration made
by the deceased ought to be treated with care and caution
since the maker of the statement cannot be subjected to any
cross-examination. In the present case, admittedly, the alleged
dying declaration had not been made to any doctor or to any
independent witness, but only to the mother who, as stated
above, arrived at the hospital only on the following day at
about 3.30 p.m. when Dr. Nitin had already operated Raju for
his injuries and thereafter he was lying on the bed in
unconscious condition with oxygen tubes having been inserted
in his nostrils. The prosecution has not brought on record any
medical certification to prove that after operation the deceased
was in a fit condition to make the declaration before his
mother. The evidence of alleged oral dying declaration by the
deceased Raju to his mother PW Sundarbai relied upon by the
prosecution and accepted by the trial court and the High Court,
in our view, was not cogent, satisfactory and convincing to hold
that deceased Raju before his death was in a fit condition to
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Digitally Signed
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ASWAL
Signing Date:03.01.2024
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make oral declaration to his mother.”
(emphasis supplied)
34.

It has also come in the evidence of PW-8 and PW-13, namely, Abdul
Bari, that the window pane of the car (in which the deceased was shot), was
broken. This would necessarily imply that the window panes of the car, in
which the deceased was shot, were closed at the time of the incident. In such
a situation whether the deceased could hear the utterance of the assailant that
“saale tujhe Connaught Hotel ke malik Kakkar ke paise toh pasand nahi
aaye, ab goli pasand aayegi” is also shrouded in doubt.
35.

As noted above, the prosecution has attributed motive to petitioner for
carrying out the present offence as the deceased, being an Estate officer, was
to pronounce an order against the petitioner. However, the testimony of R.
Venkatesh (PW-11) reveals that Prominent Hotels Ltd., (a company running
the Connaught Hotel at the relevant time) of which the petitioner was a
director, had given a no objection for appointing the deceased as the Estate
Officer in the case of the petitioner. The relevant part of the cross
examination of PW-11 reads as under:
“XXXXXX by Sh. S.P. Kausal, Ld. Counsel for the accused
Ramesh Kakkar.
It is correct that I alongwith Sh. Rajiv Sharma, Advocate used
to appear before Estate Officer and we used to brief MS about
the court proceedings. Deceased M.M. Khan was probably
law officer prior to the Estate Officer. I have been appearing
in every Court in the proceedings of the Hotel Connaught. It is
a matter of record the Prominent Hotels Ltd. has given no
objection for appointing decease as Estate Officer in this
case. I have not recommended appeal against any order
passed in the case of Hotel Connaught. We had no grievance
against any order/proceedings passed by deceased Sh. M. M.
Khan as Estate Officer in the case of Hotel Connaught till the
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ASWAL
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matter was before him. On 13.05.2016, the liberty was given
to file the written synopsis if any by 17.05.2016 though no
date was fixed for the pronouncement of order.”
(emphasis supplied)
36.

As far as the CDR’s of the petitioner are concerned, it is relevant to
note that it is not the case of the prosecution in the status report that the
petitioner has been in contact with any other co-accused barring Ram Phool,
who was the PSO of the petitioner. Since the petitioner and Ram Phool
were in a close professional relationship, there was bound to be CDR
connectivity between them. However, the evidentiary value of the same
shall be seen by the Trial Court. Further, there is nothing unusual about the
CDRs showing connectivity between the petitioner and co-accused Ram
Phool and Israel, as it is the prosecution’s own case that Israel has worked
for Ramphool previously.
37.

In any case, the CDR’s of the petitioner can only be used as
supporting or corroborative piece of evidence and cannot form the sole basis
of conviction. Reference in this regard may be had to a decision of a coordinate bench of this Court in Azad v. State of GNCT of Delhi2, wherein it
has been held that “CDR data can only be taken as supporting or
corroborative piece of evidence and conviction cannot be made solely on
basis of CDR data”. Likewise, the evidentiary value of the CDRs can be
seen only at the time of trial and not at the stage of considering the bail
application. Reference may advantageously be had to the decision of the
2
2023 SCC OnLine Del 1769
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ASWAL
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Supreme Court in State (By NCB) Bengaluru v. Pallulabid Ahmad
Arimutta3, the relevant paragraph of which reads as under:“12. …The CDR details of some of the accused or the
allegations of tampering of evidence on the part of one of the
respondents is an aspect that will be examined at the stage
trial.”
38.

Though the ultimate call on probative value of the evidence, the
credibility and reliability of the testimonies of the witnesses, will be taken
by the learned Trial Court at the stage of trial but for the purpose of
considering bail application, this Court cannot be unmindful of the gaps that
have come to the fore in the version of the prosecution, which coupled with
the long incarceration of approximately six years (as per nominal roll dated
12.06.2023, the custody period is 5 years 5 months and 15 days) furnishes
the justification for grant of bail to the petitioner.
39.

That apart, the prosecution has cited as many as 61 witnesses, out of
which only 31 witnesses have been examined.

Therefore, there is no
possibility of the trial being concluded any time soon.
40.

The apprehension of the learned APP for the State that the petitioner
being a man of means can win over witnesses in order to make them depose
them in their favour cannot be sustained, in as much, as the petitioner has
been enlarged on interim bail a number of times and the said concession has
not been misused by the petitioner.

Further, all public witnesses have
already been examined. Nonetheless, the apprehension expressed by the
learned APP can be allayed by putting appropriate conditions.

3
(2022) 12 SCC 633
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ASWAL
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41.

It is well settled that at the pre-conviction stage, there is a
presumption of innocence. The object of keeping a person in custody is to
ensure his availability to face the trial and to receive the sentence that may
be awarded to him. The circumstances discussed above, do not warrant
keeping the petitioner in custody for an indefinite period to await the
conclusion of trial. An ultimate acquittal with continued custody would
rather, be a case of grave injustice.
42.

In respect of the antecedents of the petitioner, to be noted that the
petitioner has been acquitted in DA1-1998-A-0025 vide judgment dated
28.05.2022, which has been annexed as Annexure D to the written synopsis
filed by the petitioner. Whereas, the other case stated to be pending against
the petitioner vide FIR No. 463/2002 u/s 285/304A IPC registered at PS
Mandir Marg, New Delhi relates to the year 2002 i.e. more than 20 years
ago and it is also not the case of the prosecution that the petitioner has been
recently involved in any other offence.
43.

The Supreme Court in Prabhakar Tewari v. State of Uttar Pradesh4,
has held that the fact that multiple criminal charges are still pending against
the accused by itself cannot be a ground to deny bail. The relevant paragraph
of the aforesaid judgment reads as under:
“73. ….The offence alleged no doubt is grave and serious
and there are several criminal cases pending against the
accused. These factors by themselves cannot be the basis for
refusal of prayer for bail. The High Court has exercised its
discretion in granting bail to the accused Vikram Singh upon
considering relevant materials. No ex facie error in the order
has been shown by the appellant which would establish
4
(2020) 11 SCC 648
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ASWAL
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exercise of such discretion to be improper. We accordingly
sustain the order [Vikram Singh v. State of U.P., 2019 SCC
OnLine All 5566] of the High Court granting bail. This appeal
is dismissed.”
(Emphasis supplied)
44.

Considering the above discussed circumstances in entirety, I am of the
view that the petitioner is entitled to grant of regular bail pending trial.
Accordingly, the petitioner is admitted to bail subject to his furnishing a
personal bond in the sum of Rs. 50,000/- with two sureties of like amount,
one of which should be of the family member, subject to the satisfaction of
the Trial Court/Duty Magistrate/CMM, further subject to the following
conditions.
a)
The petitioner shall not leave the NCR without permission of
this Court and shall ordinarily reside at the address as per prison
records/as mentioned in the petition;
b)
Petitioner shall surrender his Passport, if any, before the Trial
Court at the time furnishing bail bond/surety bond.
c)
Petitioner shall appear before the learned Trial Court as and
when the matter is taken up for hearing.
d)
The petitioner shall furnish to the IO/S.H.O P.S: Jamia Nagar, a
cell-phone number on which the petitioner may be contacted at any
time and shall ensure that the number is kept active and switched-on
at all times;
e)
The petitioner shall not contact, nor visit, nor offer any
inducement, threat or promise to the complainant or any of the
prosecution witnesses or other persons acquainted with the facts of
the case. The petitioner shall not tamper with evidence nor otherwise
Signature Not Verified
Digitally Signed
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ASWAL
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indulge in any act or omission that is unlawful or that would
prejudice the proceedings in the pending trial.
45.

It is made clear that the observations made herein are only for the
purpose of considering the bail application and the same shall not be deemed
to be an expression of opinion on the merits of the case.
46.

The petition stands disposed of.

47.

Copy of the order be forwarded to the concerned Jail Superintendent
for necessary information and compliance.
48.

Order dasti under the signatures of the Court Master.

49.

Order be uploaded on the website of the Court.

VIKAS MAHAJAN, J.
JANUARY 03, 2024
MK
Signature Not Verified
Digitally Signed
By:NARENDRA SINGH
ASWAL
Signing Date:03.01.2024
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