Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on : May 23, 2016
+ BAIL APPLN. 65/2016
AMIT KUMAR GUPTA & MONU ..... Petitioner
Through: Mr.M.S.Ahluwalia, Advocate.
versus
STATE ..... Respondent
Through: Mr.Amit Chadha, Additional Public
Prosecutor for the State.
Mr.Abhinav Agnihotri, Advocate for
Complainant.
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. 373/2014 under
Section 363/302/201/34 of Indian Penal Code, at Police Station New
Usmanpur, Delhi.
2. The petitioner is charged with the offences of kidnapping and
murdering a five year boy – Vasu Gupta, grandson of the complainant
– Ram Chandra Gupta. It is informed by the complainant that on
24.04.2014 in the evening at about 6.30 pm his grandson Vasu Gupta,
aged 5 years, medium built, fair complexion, height about 3 ft.,
Bail. Appln. No.65/2016 Page 1 of 8
wearing black colour T-Shirt and cream colour pant had gone into the
street from the house for playing, but did not return back. Search of
child was made in the nearby area, but he could not be traced.
Accordingly, the FIR in question was registered and investigation
started.
3. During the course of investigation, on 25.04.2014 vide DD
No.11-A, Police Station Gokalpuri, Delhi, an information regarding
dead body of a child, whose description were similar to that of the
kidnapped child was received. Father of the child was called in GTB
Hospital Mortuary, where the dead body was identified as that of the
kidnapped child i.e. Vasu. The suspected uncle of the deceased - Amit
Gupta @ Monu was interrogated. His activity from his mobile number
9891203060 was checked and it was found that he was continuously
talking to mobile no.9210040738 since 24.04.2014 till the recovery of
the dead body of Vasu. During interrogation, the petitioner – Amit
Gupta admitted his involvement in the kidnapping for the fulfillment
of his lust for money. He admitted that after kidnapping the child, he
kept the child in his house and gave him a tab, cold drink with
sleeping pills and also admistered him forcibly ‘musa ka gul’,
substance of which, lying in a box was also recovered. During
investigation, one hair, some pills, one tab make Samsung, Coca Cola
Bottle, one pillow cover with some blood stain were recovered from
the house of the petitioner – Amit Gupta.
4. After completion of the investigation, the charge sheet has been
Bail. Appln. No.65/2016 Page 2 of 8
filed in this case and the petitioner is charged with the offence
punishable under Section 363/302/201/34 of IPC.
5. Mr.M.S. Ahluwalia, learned counsel for the petitioner
contended that this case is registered in the year 2014, petitioner is in
custody for the last one and half years, and there are more than 32
witnesses and out of them only one witness has been examined. It is
further contended that even the impugned orders clearly states that the
present case is based on circumstantial evidence and the star material
witness, i.e., the complainant of the FIR in question has categorically
deposed in his deposition that he never suspected the petitioner being
involved in the offence.
6. Learned counsel for the petitioner further contended that there is
rivalry between the complainant and his family as he wanted to buy
their property and it is only after four days that he named the
petitioner in the case and got him implicated. Regarding recovery, it
is contended that the petitioner’s house was sealed by the police on
27.07.2015 and the keys remained with the police till 29.07.2015 and
for two days anything could have been planted in the house of the
petitioner. It is further contended that the father of the deceased had
lodged a case against one of his employees - Lalit and there is another
employee – Hari, but the police did not examine them. It is further
contended that the deceased boy was last seen at Mecca Masjid, who
was taken by two persons and the said information was conveyed by
two persons who were unloading the truck but he failed to inform the
Bail. Appln. No.65/2016 Page 3 of 8
police instantly.
7. On the point of medical examination, it is contended that an
allegation regarding administering tranquilizer to the deceased boy
Vasu was made, but one of the FSL reports which is placed on record
demonstrates that no tranquilizer has been found in the body of the
deceased.
8. It is further contended that there is not a single piece of
evidence either direct or indirect/circumstantial which points out the
guilt of the petitioner. Even there is no evidence that the deceased
Vasu entered into the house of the petitioner and the investigation
officer miserably failed to adduce even a single witness who would
have seen Vasu entering into the house of the accused. No public or
independent witness has come forward and no person saw him
removing the dead body of the deceased from the house of the
petitioner.
9. Learned counsel for the petitioner further contended that the
prosecution has failed to explain motive of murder and it is submitted
that without motive no prudent man on earth can murder any person.
In support of his submission, reliance was placed on Litta Singh &
Anr. v. State of Rajasthan, AIR 2013 SC 2554.
10. Lastly, it is contended that there is another FSL report, which is
not being placed on record by the prosecution despite several repeated
requests by the petitioner for the last more than one and half years and
Bail. Appln. No.65/2016 Page 4 of 8
the petitioner is being kept in incarceration without the FSL report
being placed before the Court and causing prejudice to the case of the
petitioner. Moreover, trial of the case has started and there is no hope
of FSL report being filed in near future, and the trial of the case may
take time to conclude. Apart from the aforesaid, the petitioner is a
permanent resident of Delhi, he has no criminal antecedents, no
recovery has to be effected from him and charge sheet in the case has
been filed, therefore, the petitioner ought to have been granted bail in
the present case.
11. Mr. Amit Chadha, Additional Public Prosecutor for the State
vehemently opposed the aforesaid contentions made on behalf of the
petitioner and submitted that the petitioner is involved in a heinous
crime and is facing charges of kidnapping and murdering of a young
boy of 5 year only. Charge sheet has been filed and during
investigation it is revealed that the petitioner was in continuous touch
with the other co-accused on his mobile, till the dead body of deceased
boy was recovered. The petitioner has also admitted his involvement
in the kidnapping for fulfilling his lust of money. There is also
disclosure by the petitioner that he gave the deceased cold drink with
sleeping pills and when the deceased boy Vasu lost his consciousness,
he forcibly administered ‘musa ka gul’ but due to fear of shouting he
pressed the mouth of the child and murdered him.
12. Learned Additional Public Prosecutor for the State further
submitted that the SIMs of the petitioner and other co-accused, box of
Bail. Appln. No.65/2016 Page 5 of 8
Musa ka Gul and remaining substance of musa ka gul lying in a box
were also recovered. A Santro Car No.DL-4CS 5041, one sandal of
child Vasu Gupta were also recovered. Therefore, in such a situation,
the present petitioner does not deserve for grant of bail.
13. I have heard the submissions and counter submissions made on
behalf of both the sides. This Court is conscious of the fact that in the
present case life of a 5 year child has been sacrificed, by first
kidnapping, tendering tranquilizers, and thereafter murdering by
pressing the mouth of the child. Surely, such kind of offences for
fulfilling the lust of money should not be taken lightly. Though, the
petitioner has controverted the prosecution story and also tried to
create dents therein, but that can only be looked into during trial by
leading cogent evidence. What this Court, at this stage of considering
the bail application of the petitioner, has to see is, as to whether the
petitioner has been able to make out a prima facie case for grant of
bail.
14. 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:
9. ... among other circumstances, the factors [which are]
to be borne in mind while considering an application for
bail are:
Bail. Appln. No.65/2016 Page 6 of 8
(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.
15. Considering the aforesaid facts and circumstances of the present
case and the fact that the trial is at the evidence stage and in the
considered opinion of this Court, it would not be just and fair to
appreciate the evidence recorded before the Trial Court and adjudicate
upon them, at the stage of considering the application for bail.
Therefore, while perusing the charge sheet, and considering the
gravity of offence, this Court is not inclined to grant bail to the
petitioner at this stage.
16. Resultantly, in the considered opinion of this Court, the facts
emerging from the record culminates into dismissal of the present bail
application. Accordingly, the present bail application filed by the
Bail. Appln. No.65/2016 Page 7 of 8
petitioner is dismissed at this stage.
17. 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.
18. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.
(P.S.TEJI)
JUDGE
MAY 23, 2016
pkb
Bail. Appln. No.65/2016 Page 8 of 8
Judgment delivered on : May 23, 2016
+ BAIL APPLN. 65/2016
AMIT KUMAR GUPTA & MONU ..... Petitioner
Through: Mr.M.S.Ahluwalia, Advocate.
versus
STATE ..... Respondent
Through: Mr.Amit Chadha, Additional Public
Prosecutor for the State.
Mr.Abhinav Agnihotri, Advocate for
Complainant.
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. 373/2014 under
Section 363/302/201/34 of Indian Penal Code, at Police Station New
Usmanpur, Delhi.
2. The petitioner is charged with the offences of kidnapping and
murdering a five year boy – Vasu Gupta, grandson of the complainant
– Ram Chandra Gupta. It is informed by the complainant that on
24.04.2014 in the evening at about 6.30 pm his grandson Vasu Gupta,
aged 5 years, medium built, fair complexion, height about 3 ft.,
Bail. Appln. No.65/2016 Page 1 of 8
wearing black colour T-Shirt and cream colour pant had gone into the
street from the house for playing, but did not return back. Search of
child was made in the nearby area, but he could not be traced.
Accordingly, the FIR in question was registered and investigation
started.
3. During the course of investigation, on 25.04.2014 vide DD
No.11-A, Police Station Gokalpuri, Delhi, an information regarding
dead body of a child, whose description were similar to that of the
kidnapped child was received. Father of the child was called in GTB
Hospital Mortuary, where the dead body was identified as that of the
kidnapped child i.e. Vasu. The suspected uncle of the deceased - Amit
Gupta @ Monu was interrogated. His activity from his mobile number
9891203060 was checked and it was found that he was continuously
talking to mobile no.9210040738 since 24.04.2014 till the recovery of
the dead body of Vasu. During interrogation, the petitioner – Amit
Gupta admitted his involvement in the kidnapping for the fulfillment
of his lust for money. He admitted that after kidnapping the child, he
kept the child in his house and gave him a tab, cold drink with
sleeping pills and also admistered him forcibly ‘musa ka gul’,
substance of which, lying in a box was also recovered. During
investigation, one hair, some pills, one tab make Samsung, Coca Cola
Bottle, one pillow cover with some blood stain were recovered from
the house of the petitioner – Amit Gupta.
4. After completion of the investigation, the charge sheet has been
Bail. Appln. No.65/2016 Page 2 of 8
filed in this case and the petitioner is charged with the offence
punishable under Section 363/302/201/34 of IPC.
5. Mr.M.S. Ahluwalia, learned counsel for the petitioner
contended that this case is registered in the year 2014, petitioner is in
custody for the last one and half years, and there are more than 32
witnesses and out of them only one witness has been examined. It is
further contended that even the impugned orders clearly states that the
present case is based on circumstantial evidence and the star material
witness, i.e., the complainant of the FIR in question has categorically
deposed in his deposition that he never suspected the petitioner being
involved in the offence.
6. Learned counsel for the petitioner further contended that there is
rivalry between the complainant and his family as he wanted to buy
their property and it is only after four days that he named the
petitioner in the case and got him implicated. Regarding recovery, it
is contended that the petitioner’s house was sealed by the police on
27.07.2015 and the keys remained with the police till 29.07.2015 and
for two days anything could have been planted in the house of the
petitioner. It is further contended that the father of the deceased had
lodged a case against one of his employees - Lalit and there is another
employee – Hari, but the police did not examine them. It is further
contended that the deceased boy was last seen at Mecca Masjid, who
was taken by two persons and the said information was conveyed by
two persons who were unloading the truck but he failed to inform the
Bail. Appln. No.65/2016 Page 3 of 8
police instantly.
7. On the point of medical examination, it is contended that an
allegation regarding administering tranquilizer to the deceased boy
Vasu was made, but one of the FSL reports which is placed on record
demonstrates that no tranquilizer has been found in the body of the
deceased.
8. It is further contended that there is not a single piece of
evidence either direct or indirect/circumstantial which points out the
guilt of the petitioner. Even there is no evidence that the deceased
Vasu entered into the house of the petitioner and the investigation
officer miserably failed to adduce even a single witness who would
have seen Vasu entering into the house of the accused. No public or
independent witness has come forward and no person saw him
removing the dead body of the deceased from the house of the
petitioner.
9. Learned counsel for the petitioner further contended that the
prosecution has failed to explain motive of murder and it is submitted
that without motive no prudent man on earth can murder any person.
In support of his submission, reliance was placed on Litta Singh &
Anr. v. State of Rajasthan, AIR 2013 SC 2554.
10. Lastly, it is contended that there is another FSL report, which is
not being placed on record by the prosecution despite several repeated
requests by the petitioner for the last more than one and half years and
Bail. Appln. No.65/2016 Page 4 of 8
the petitioner is being kept in incarceration without the FSL report
being placed before the Court and causing prejudice to the case of the
petitioner. Moreover, trial of the case has started and there is no hope
of FSL report being filed in near future, and the trial of the case may
take time to conclude. Apart from the aforesaid, the petitioner is a
permanent resident of Delhi, he has no criminal antecedents, no
recovery has to be effected from him and charge sheet in the case has
been filed, therefore, the petitioner ought to have been granted bail in
the present case.
11. Mr. Amit Chadha, Additional Public Prosecutor for the State
vehemently opposed the aforesaid contentions made on behalf of the
petitioner and submitted that the petitioner is involved in a heinous
crime and is facing charges of kidnapping and murdering of a young
boy of 5 year only. Charge sheet has been filed and during
investigation it is revealed that the petitioner was in continuous touch
with the other co-accused on his mobile, till the dead body of deceased
boy was recovered. The petitioner has also admitted his involvement
in the kidnapping for fulfilling his lust of money. There is also
disclosure by the petitioner that he gave the deceased cold drink with
sleeping pills and when the deceased boy Vasu lost his consciousness,
he forcibly administered ‘musa ka gul’ but due to fear of shouting he
pressed the mouth of the child and murdered him.
12. Learned Additional Public Prosecutor for the State further
submitted that the SIMs of the petitioner and other co-accused, box of
Bail. Appln. No.65/2016 Page 5 of 8
Musa ka Gul and remaining substance of musa ka gul lying in a box
were also recovered. A Santro Car No.DL-4CS 5041, one sandal of
child Vasu Gupta were also recovered. Therefore, in such a situation,
the present petitioner does not deserve for grant of bail.
13. I have heard the submissions and counter submissions made on
behalf of both the sides. This Court is conscious of the fact that in the
present case life of a 5 year child has been sacrificed, by first
kidnapping, tendering tranquilizers, and thereafter murdering by
pressing the mouth of the child. Surely, such kind of offences for
fulfilling the lust of money should not be taken lightly. Though, the
petitioner has controverted the prosecution story and also tried to
create dents therein, but that can only be looked into during trial by
leading cogent evidence. What this Court, at this stage of considering
the bail application of the petitioner, has to see is, as to whether the
petitioner has been able to make out a prima facie case for grant of
bail.
14. 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:
9. ... among other circumstances, the factors [which are]
to be borne in mind while considering an application for
bail are:
Bail. Appln. No.65/2016 Page 6 of 8
(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.
15. Considering the aforesaid facts and circumstances of the present
case and the fact that the trial is at the evidence stage and in the
considered opinion of this Court, it would not be just and fair to
appreciate the evidence recorded before the Trial Court and adjudicate
upon them, at the stage of considering the application for bail.
Therefore, while perusing the charge sheet, and considering the
gravity of offence, this Court is not inclined to grant bail to the
petitioner at this stage.
16. Resultantly, in the considered opinion of this Court, the facts
emerging from the record culminates into dismissal of the present bail
application. Accordingly, the present bail application filed by the
Bail. Appln. No.65/2016 Page 7 of 8
petitioner is dismissed at this stage.
17. 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.
18. With aforesaid direction, the present bail application, filed by
the petitioner stand disposed of.
(P.S.TEJI)
JUDGE
MAY 23, 2016
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Bail. Appln. No.65/2016 Page 8 of 8