Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : August 12, 2016
+ BAIL APPLN. 1167/2016
FARHAN @ SAMEER ..... Petitioner
Through: Mr.Tanvir Quiser, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State with Sub-
Inspector Sandeep Rathi, Police
Station Ranhola, Delhi.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J.
1. By this petition filed under Section 439 of Cr. P.C., the
petitioner seeks bail in a case registered as FIR No. 21/2013 under
Section 364/302/120B/201/34 of Indian Penal Code, at Police Station
Ranhola, Delhi.
2. Petitioner is the husband of deceased Abhilasha. Marriage
between them was solemnized on 19.03.2012. In the month of July
2012 a missing report was lodged by the petitioner with Police Station
Ranhola, Delhi vide DD No.48A, dated 21.07.2012. On 20.07.2012 a
female dead body was recovered near railway track and the inquest
proceedings were conducted by Police Station Gabhana Aligarh, U.P.
Bail. Appln. No.1167/2016 Page 1 of 9
and the body of deceased was disposed of as unclaimed as the identity
of body could not be established.
3. The present case was registered on 03.02.2013 on the complaint
of Santosh Devi, who was mother of the deceased Abhilasha, wherein
she suspected her son-in-law (petitioner herein) that he might have
murdered her daughter and disposed the body somewhere.
Investigation started and on the same date, the petitioner was
interrogated, wherein he disclosed that he came to Delhi and started to
live with Abhilasha (since deceased). In the meantime the petitioner
came to know that the deceased had illegal and immoral relation with
a person namely Bobby. Thereafter, she threatened him with dire
consequences if he did not marry her. Finally the petitioner got
married with Abhilasha but he was not happy with this marriage and
he wanted to get rid of her. It is further disclosed by the petitioner that
he planned the murder of Abhilasha alongwith Shanu . On 19.07.2012
he went to Aligarh with Abhilasha on the pretext of attending a
marriage and met Shanu on the way (the co-accused in the present
case). Thereafter the petitioner, alongwith Shanu, Mushir Ahmad and
unknown person executed the murder of Abhilasha and the body was
dumped near the railway track to destroy the evidence. Accordingly,
the petitioner was arrested on 03.02.2013. Inquest papers of the
deceased were obtained in which the doctor opined the cause of death
as ‘death is due to shock and hemmorrhage as the result of ante
mortem injuries’. Thereafter, the other co-accused Shanu @ Moin
Khan was arrested on 08.03.2013.
Bail. Appln. No.1167/2016 Page 2 of 9
4. Mr. Tanvir Quiser, learned counsel for the petitioner contended
there is no legal evidence against the petitioner and that he has been
falsely implicated by the police of Police Station Ranhola, Delhi. It is
further contended on behalf of the petitioner that he himself had gone
with his mother in law to lodge a person’s missing report therefore
presumption of his innocence can be drawn in faovur of the petitioner.
Delay of seven months in lodging the FIR is the further contention on
behalf of the petitioner. Even the FIR does not disclose the name of
the petitioner. It is further contended that there is no eye witness to the
incident and the entire case is based on circumstantial evidence and
there is no evidence regarding last seen evidence and the prosecution
has not proved any motive behind the offence. Even there is no
recovery of weapon of any offence at the instance of the petitioner.
5. It is further contended on behalf of the petitioner that the
incident occurred on 21.07.2012 and the FIR was registered on
03.02.2013 and there is no explanation for the delay in lodging the
FIR. As per counsel for the petitioner, in a case of murder, delay
cannot be exceeded by two or three hours if the police station is near
to the spot but in this case there has been a delay of 7-8 months,
therefore no reliance can be placed on the FIR in question. It is further
contended on behalf of the petitioner that a case, which is based on
circumstantial evidence, starts from the last seen evidence and since
there is no last seen evidence in this case therefore, no special
knowledge under Section 106/107 of Evidence Act can be attributed to
the petitioner.
Bail. Appln. No.1167/2016 Page 3 of 9
6. Apart from the aforesaid contentions, marriage between the
petitioner and the deceased is challenged on behalf of the petitioner
while contending that there is no evidence of marriage between the
petitioner and the deceased except the photographs, which can be
clicked by the complainant even without solemnizing the marriage.
Deposition of the complainant is referred on behalf of the petitioner in
which she stated that there used to remain quarrel between the
petitioner and the deceased but at the time of cross-examination, she
categorically stated that no complaint was made to the policy or any
other authority regarding quarrel. It is further contended that the
petitioner went to the house of his mother-in-law in search of
Abhilasha and he had also gone with her mother-in-law for lodging
missing report of Abhilasha therefore the presumption of his
innocence cannot be ignored. Moreover, public witness – Neha (PW-
6) has been turned hostile and did not support the prosecution case.
7. Learned counsel for the petitioner further drew attention of the
Court that as per the prosecution case and the publication which was
published in the newspaper by the mother of the deceased, the age of
deceased was 25 years, however, in the post mortem report conducted
by the doctor, the age of the deceased was stated to be 17 years,
therefore no question of identification of the deceased arises. It is
further contended on behalf of the petitioner that no independent
witnesses are available in the present case. So far as medical evidence
of doctor (PW-10) is concerned, it is contended that the doctor had
deposed in his cross-examination that the death may be caused if the
Bail. Appln. No.1167/2016 Page 4 of 9
deceased would have been met with train accident, therefore, the cause
of death may be of an accident.
8. It is further urged on behalf of the petitioner that the dead body
of the deceased was not recovered at the instance of the petitioner.
However, learned counsel for the petitioner has contended that there
are several judgments of Hon’ble Supreme Court in which it is held
that even if the dead body is recovered at the instance of accused, it
does not mean that he is the accused of that offence and that the mere
leading of the police by the accused and pointing out the place where
the dead body was recovered, which is an open area and is accessible
to all, does not indicate the guilt of the accused.
9. In support of the aforesaid contentions, learned counsel for the
petitioner relied upon the following judgments:
i. Mohd. Ali vs. Ram Swaroop, AIR 1965 161;
ii. Hiyakat Singh vs. Emperor, AIR 1932 209;
iii. Siddappa vs. State of Karnataka, 2010 (1) Crime 12;
iv. Tarelal vs. State of M.P., 1996 (2) Crimes 144;
v. Javir vs. State of U.P., 2010 (3) Crimes 488 and AIR
1990 SC 1032;
vi. Raj Kumar vs. State of Himachal Pradesh, 2002 CRiLJ
3816;
vii. Suresh Pawar vs. State of Chhattisgarh, 2003 (1) Crimes
311;
viii. Amit @ Mandeep vs.State of NCT of Delhi, 2006 (3)
Bail. Appln. No.1167/2016 Page 5 of 9
Crimes 585.
10. Mr. Amit Chadha, Additional Public Prosecutor for the State
vehemently opposed the aforesaid contentions raised by learned
counsel for the petitioner. It is contended that on a suspicion of the
complainant, the petitioner was interrogated on 03.02.2013 and he
himself disclosed that he came to Delhi and started living with
daughter of the complainant and after sometime he came to know that
the deceased was having illegal and immoral relations with a person
namely Bobby. When the petitioner objected the deceased threatened
him with dire consequences and forced him to marry with her. The
petitioner further disclosed that after marriage, he was not happy and
wanted to get rid of the deceased. It is further disclosed by the
petitioner that on 11.07.2012 he alongwith other person Shanu,
planned the murder of deceased and according to plan, the petitioner,
alongwith Shanu, Mushir Ahmad and one other unknown person
executed the murder of Abhilasha and the body was dumped near the
railway track to destroy the evidence. The petitioner has also
identified the place of incident, which was situated in the jurisdiction
of Police Station Gabhana Aligarh. Learned Additional Public
Prosecutor for the State further stated that during the course of
investigation it was revealed that a female dead body was recovered
near railway track on 20.07.2012 however the same was disposed as
unclaimed as the identity of body could not be established. Inquest
papers were obtained and doctor had opined the cause of death as
Death due to shock and hemorrhage as the result of ante mortem
Bail. Appln. No.1167/2016 Page 6 of 9
injuries.
11. So far as motive is concerned, learned Additional Public
Prosecutor for the State further contended that there was real motive
for the petitioner to commit the crime in question as he was not happy
with marriage of the deceased Abhilasha. It is further stated that the
charge sheet has been filed and 10 out of 16 witnesses have been
examined. Moreover, prosecution witnesses have supported the case
of prosecution and the circumstances of this case do not rule out the
possibility of complicity of petitioner herein. It is further informed that
four bail applications of the petitioner have been dismissed by the
learned Additional Sessions Judge. Since the trial is at fag end,
therefore the petitioner be not granted bail in this case.
12. I have heard the submissions made by learned counsel for the
petitioner and the learned Additional Public Prosecutor for the State. I
have also gone through the impugned order as well as record of the
case. Admittedly, the charge sheet in this case has been filed and 10
out of 16 witnesses have been examined. Petitioner has been charged
with the offence punishable under Section 364/302/120-B/201/34 of
IPC which is a grievous in nature.
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496 , the Hon’ble Supreme Court dealt with the basic principles
laid down in catena of judgments on the point of granting bail. The
Court proceeded to enumerate the factors:
Bail. Appln. No.1167/2016 Page 7 of 9
9. ... among other circumstances, the factors [which are]
to be borne in mind while considering an application for
bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing,
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
14. Considering the aforesaid facts and circumstances of the present
case; the fact that the complainant has specifically suspected the
petitioner being involved in murdering her daughter, and the fact that
the case is based on circumstantial evidence; pending adjudication
before the trial court and the trial of the case is at fag end, this Court is
not inclined to grant bail to the petitioner.
15. Resultantly, in the considered opinion of this court, the facts
emerging from the record culminate into dismissal of the present bail
Bail. Appln. No.1167/2016 Page 8 of 9
application. Accordingly, the present bail application filed by the
petitioner is dismissed at this stage.
16. Before parting with the order, this Court would like to place it
on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of
disposing of the prayer for bail made by the petitioner. Nothing
contained in this order shall be construed as expression of a final
opinion on any of the issues of fact or law arising for decision in the
case which shall naturally have to be done by the Trial Court seized of
the trial.
17. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.
(P.S.TEJI)
JUDGE
AUGUST 12, 2016
pkb
Bail. Appln. No.1167/2016 Page 9 of 9
Judgment delivered on : August 12, 2016
+ BAIL APPLN. 1167/2016
FARHAN @ SAMEER ..... Petitioner
Through: Mr.Tanvir Quiser, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. Amit Chadha, Additional Public
Prosecutor for the State with Sub-
Inspector Sandeep Rathi, Police
Station Ranhola, Delhi.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
JUDGMENT
P.S.TEJI, J.
1. By this petition filed under Section 439 of Cr. P.C., the
petitioner seeks bail in a case registered as FIR No. 21/2013 under
Section 364/302/120B/201/34 of Indian Penal Code, at Police Station
Ranhola, Delhi.
2. Petitioner is the husband of deceased Abhilasha. Marriage
between them was solemnized on 19.03.2012. In the month of July
2012 a missing report was lodged by the petitioner with Police Station
Ranhola, Delhi vide DD No.48A, dated 21.07.2012. On 20.07.2012 a
female dead body was recovered near railway track and the inquest
proceedings were conducted by Police Station Gabhana Aligarh, U.P.
Bail. Appln. No.1167/2016 Page 1 of 9
and the body of deceased was disposed of as unclaimed as the identity
of body could not be established.
3. The present case was registered on 03.02.2013 on the complaint
of Santosh Devi, who was mother of the deceased Abhilasha, wherein
she suspected her son-in-law (petitioner herein) that he might have
murdered her daughter and disposed the body somewhere.
Investigation started and on the same date, the petitioner was
interrogated, wherein he disclosed that he came to Delhi and started to
live with Abhilasha (since deceased). In the meantime the petitioner
came to know that the deceased had illegal and immoral relation with
a person namely Bobby. Thereafter, she threatened him with dire
consequences if he did not marry her. Finally the petitioner got
married with Abhilasha but he was not happy with this marriage and
he wanted to get rid of her. It is further disclosed by the petitioner that
he planned the murder of Abhilasha alongwith Shanu . On 19.07.2012
he went to Aligarh with Abhilasha on the pretext of attending a
marriage and met Shanu on the way (the co-accused in the present
case). Thereafter the petitioner, alongwith Shanu, Mushir Ahmad and
unknown person executed the murder of Abhilasha and the body was
dumped near the railway track to destroy the evidence. Accordingly,
the petitioner was arrested on 03.02.2013. Inquest papers of the
deceased were obtained in which the doctor opined the cause of death
as ‘death is due to shock and hemmorrhage as the result of ante
mortem injuries’. Thereafter, the other co-accused Shanu @ Moin
Khan was arrested on 08.03.2013.
Bail. Appln. No.1167/2016 Page 2 of 9
4. Mr. Tanvir Quiser, learned counsel for the petitioner contended
there is no legal evidence against the petitioner and that he has been
falsely implicated by the police of Police Station Ranhola, Delhi. It is
further contended on behalf of the petitioner that he himself had gone
with his mother in law to lodge a person’s missing report therefore
presumption of his innocence can be drawn in faovur of the petitioner.
Delay of seven months in lodging the FIR is the further contention on
behalf of the petitioner. Even the FIR does not disclose the name of
the petitioner. It is further contended that there is no eye witness to the
incident and the entire case is based on circumstantial evidence and
there is no evidence regarding last seen evidence and the prosecution
has not proved any motive behind the offence. Even there is no
recovery of weapon of any offence at the instance of the petitioner.
5. It is further contended on behalf of the petitioner that the
incident occurred on 21.07.2012 and the FIR was registered on
03.02.2013 and there is no explanation for the delay in lodging the
FIR. As per counsel for the petitioner, in a case of murder, delay
cannot be exceeded by two or three hours if the police station is near
to the spot but in this case there has been a delay of 7-8 months,
therefore no reliance can be placed on the FIR in question. It is further
contended on behalf of the petitioner that a case, which is based on
circumstantial evidence, starts from the last seen evidence and since
there is no last seen evidence in this case therefore, no special
knowledge under Section 106/107 of Evidence Act can be attributed to
the petitioner.
Bail. Appln. No.1167/2016 Page 3 of 9
6. Apart from the aforesaid contentions, marriage between the
petitioner and the deceased is challenged on behalf of the petitioner
while contending that there is no evidence of marriage between the
petitioner and the deceased except the photographs, which can be
clicked by the complainant even without solemnizing the marriage.
Deposition of the complainant is referred on behalf of the petitioner in
which she stated that there used to remain quarrel between the
petitioner and the deceased but at the time of cross-examination, she
categorically stated that no complaint was made to the policy or any
other authority regarding quarrel. It is further contended that the
petitioner went to the house of his mother-in-law in search of
Abhilasha and he had also gone with her mother-in-law for lodging
missing report of Abhilasha therefore the presumption of his
innocence cannot be ignored. Moreover, public witness – Neha (PW-
6) has been turned hostile and did not support the prosecution case.
7. Learned counsel for the petitioner further drew attention of the
Court that as per the prosecution case and the publication which was
published in the newspaper by the mother of the deceased, the age of
deceased was 25 years, however, in the post mortem report conducted
by the doctor, the age of the deceased was stated to be 17 years,
therefore no question of identification of the deceased arises. It is
further contended on behalf of the petitioner that no independent
witnesses are available in the present case. So far as medical evidence
of doctor (PW-10) is concerned, it is contended that the doctor had
deposed in his cross-examination that the death may be caused if the
Bail. Appln. No.1167/2016 Page 4 of 9
deceased would have been met with train accident, therefore, the cause
of death may be of an accident.
8. It is further urged on behalf of the petitioner that the dead body
of the deceased was not recovered at the instance of the petitioner.
However, learned counsel for the petitioner has contended that there
are several judgments of Hon’ble Supreme Court in which it is held
that even if the dead body is recovered at the instance of accused, it
does not mean that he is the accused of that offence and that the mere
leading of the police by the accused and pointing out the place where
the dead body was recovered, which is an open area and is accessible
to all, does not indicate the guilt of the accused.
9. In support of the aforesaid contentions, learned counsel for the
petitioner relied upon the following judgments:
i. Mohd. Ali vs. Ram Swaroop, AIR 1965 161;
ii. Hiyakat Singh vs. Emperor, AIR 1932 209;
iii. Siddappa vs. State of Karnataka, 2010 (1) Crime 12;
iv. Tarelal vs. State of M.P., 1996 (2) Crimes 144;
v. Javir vs. State of U.P., 2010 (3) Crimes 488 and AIR
1990 SC 1032;
vi. Raj Kumar vs. State of Himachal Pradesh, 2002 CRiLJ
3816;
vii. Suresh Pawar vs. State of Chhattisgarh, 2003 (1) Crimes
311;
viii. Amit @ Mandeep vs.State of NCT of Delhi, 2006 (3)
Bail. Appln. No.1167/2016 Page 5 of 9
Crimes 585.
10. Mr. Amit Chadha, Additional Public Prosecutor for the State
vehemently opposed the aforesaid contentions raised by learned
counsel for the petitioner. It is contended that on a suspicion of the
complainant, the petitioner was interrogated on 03.02.2013 and he
himself disclosed that he came to Delhi and started living with
daughter of the complainant and after sometime he came to know that
the deceased was having illegal and immoral relations with a person
namely Bobby. When the petitioner objected the deceased threatened
him with dire consequences and forced him to marry with her. The
petitioner further disclosed that after marriage, he was not happy and
wanted to get rid of the deceased. It is further disclosed by the
petitioner that on 11.07.2012 he alongwith other person Shanu,
planned the murder of deceased and according to plan, the petitioner,
alongwith Shanu, Mushir Ahmad and one other unknown person
executed the murder of Abhilasha and the body was dumped near the
railway track to destroy the evidence. The petitioner has also
identified the place of incident, which was situated in the jurisdiction
of Police Station Gabhana Aligarh. Learned Additional Public
Prosecutor for the State further stated that during the course of
investigation it was revealed that a female dead body was recovered
near railway track on 20.07.2012 however the same was disposed as
unclaimed as the identity of body could not be established. Inquest
papers were obtained and doctor had opined the cause of death as
Death due to shock and hemorrhage as the result of ante mortem
Bail. Appln. No.1167/2016 Page 6 of 9
injuries.
11. So far as motive is concerned, learned Additional Public
Prosecutor for the State further contended that there was real motive
for the petitioner to commit the crime in question as he was not happy
with marriage of the deceased Abhilasha. It is further stated that the
charge sheet has been filed and 10 out of 16 witnesses have been
examined. Moreover, prosecution witnesses have supported the case
of prosecution and the circumstances of this case do not rule out the
possibility of complicity of petitioner herein. It is further informed that
four bail applications of the petitioner have been dismissed by the
learned Additional Sessions Judge. Since the trial is at fag end,
therefore the petitioner be not granted bail in this case.
12. I have heard the submissions made by learned counsel for the
petitioner and the learned Additional Public Prosecutor for the State. I
have also gone through the impugned order as well as record of the
case. Admittedly, the charge sheet in this case has been filed and 10
out of 16 witnesses have been examined. Petitioner has been charged
with the offence punishable under Section 364/302/120-B/201/34 of
IPC which is a grievous in nature.
13. In Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14
SCC 496 , the Hon’ble Supreme Court dealt with the basic principles
laid down in catena of judgments on the point of granting bail. The
Court proceeded to enumerate the factors:
Bail. Appln. No.1167/2016 Page 7 of 9
9. ... among other circumstances, the factors [which are]
to be borne in mind while considering an application for
bail are:
(i) whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing,
if released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses
being influenced; and
(viii) danger, of course, of justice being thwarted
by grant of bail.
14. Considering the aforesaid facts and circumstances of the present
case; the fact that the complainant has specifically suspected the
petitioner being involved in murdering her daughter, and the fact that
the case is based on circumstantial evidence; pending adjudication
before the trial court and the trial of the case is at fag end, this Court is
not inclined to grant bail to the petitioner.
15. Resultantly, in the considered opinion of this court, the facts
emerging from the record culminate into dismissal of the present bail
Bail. Appln. No.1167/2016 Page 8 of 9
application. Accordingly, the present bail application filed by the
petitioner is dismissed at this stage.
16. Before parting with the order, this Court would like to place it
on record by way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose of
disposing of the prayer for bail made by the petitioner. Nothing
contained in this order shall be construed as expression of a final
opinion on any of the issues of fact or law arising for decision in the
case which shall naturally have to be done by the Trial Court seized of
the trial.
17. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.
(P.S.TEJI)
JUDGE
AUGUST 12, 2016
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Bail. Appln. No.1167/2016 Page 9 of 9