CASE TITTLE: ROSHAN versus THE STATE (GOVT OF NCT OF DELHI)
CASE NO: BAIL APPLN. 2478/2023
ORDER ON: 20th May, 2024
QUORUM: JUSTICE AMIT MAHAJAN
FACTS OF THE CASE:
The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for seeking bail in FIR No. 321/2016, registered at Police Station Gokal Puri, for the offences under Section 363 of the Indian Penal Code, 1860 (‘IPC’).
The facts leading to the present appeal in question is that, The FIR was registered on a complaint made by the complainant alleging that his 3 year old daughter (victim) had taken some money from the wife of his younger brother (the applicant) and gone out to eat some street food. It was alleged that the victim did not come back and despite all efforts, the complainant was unable to find her later, information was received that a quarrel had happened at Indra Vihar, Mustafabad, Delhi. Thereafter, information was received that a dead body had been recovered. It is alleged that the police found that there was no quarrel, but the body of the victim had been recovered from the drawer of the bed of the complainant’s brother, namely, Aftab Alam, at the aforesaid address. It is the case of the prosecution that the complainant and his brother were living in the same house with their families. It is alleged that the applicant was upset due to the alleged affair between the mother of the victim and her husband. It is alleged that on the date of the incident, the victim was sleeping and the other family members had gone out, when the applicant murdered the victim out of anger. It is alleged that the applicant disclosed that the applicant closed the mouth of the victim and then tied her mouth with a dupatta. Thereafter, the applicant allegedly threw the victim in her bed. Later, the applicant allegedly lied that the victim was out playing with other kids on the street. It is alleged that the body of the victim was discovered when the other members of the family noticed the stinking smell coming from the room of the applicant.
LEGAL PROVISIONS:
under Section 439 of the Code of Criminal Procedure, 1973, talks about the power of High Court or Court of Session to direct, any person accused of an offence and in custody, be released on bail
CONTENTIONS OF APPLICANT:
The applicants counsel submitted that the applicant has clean antecedents and has been falsely implicated in the present case. the counsel submitted that the father of the applicant had made complaints to the concerned authorities regarding her false implication but no enquiry was done in that regard.counsel further contented that there is no eye witness in the present case and the entire prosecution story is based on circumstantial evidence. counsel also submitted that the testimony of the witnesses that have been examined are contradictory. Further, the dead body was not recovered at the instance of the applicant. The same was recovered from the then husband of the applicant, who has been discharged without examination. Counsel also submitted that the husband of the applicant divorced her while she was in custody and the applicant was released on interim bail by a Coordinate Bench of this Court by order and her interim bail was extended from time to time. Counsel further submitted that the applicant was granted interim bail on account of HPC guidelines by the learned Trial Court vide order as well and the applicant had surrendered on time on both instances and had never misused the liberty. Counsel further submitted that only 18 out of 30 witnesses have been examined yet and the formal witnesses are yet to be examined however, the applicant has spent more than five years in custody and the trial is likely going to take a considerable amount of time.
CONTENTIONS OF THE RESPONDENT:
The Additional Public Prosecutor appearing for the State strongly opposed the grant of any relief to the applicant. Counsel submitted that the offences involved in the present case are heinous in nature. and the victim was last seen with the applicant. The counsel further submitted that the nominal roll of the applicant indicates that the jail conduct of the applicant is non-satisfactory and the applicant broke jail rules and was involved in a number of other offences while in custody, including her alleged involvement in jail
COURTS ANALYSIS AND JUDGEMENT:
The court on considering both the sides, observed that the allegations in the present case are grave and heinous in nature. The court also opined that Extra judicial confessions are weak pieces of evidence, whereby it is incumbent on the Courts to exercise extra caution while examining the same, At this stage, it cannot be denied that there is no direct evidence against the applicant and she has been implicated solely on the basis of the circumstances allegedly leading to the death of the victim, such as the victim having been allegedly last seen with the applicant. It is pertinent to note that the applicant admittedly used to stay in the same house as the victim. It is also not denied that the allegations in the present case are only made by the family members of the victim and the ex-husband of the applicant.The court observed that There is no eye-witness to the commission of the alleged offence.the court also observed that, It is settled law that when the case is based solely on circumstantial evidence, the chain of circumstances has to be so complete that it leaves no reasonable ground for any other conclusion except for the hypothesis of guilt of the accused person.The allegations along with the defences would be considered during the course of the trial. The applicant, being a woman, is undeniably entitled to special consideration while dealing with the question of bail, in terms of the proviso to Section 437(1) of the CrPC. Therefore, the court In view of the above, directed to released applicant on bail on furnishing a bail bond with one surety of the like amount, subject to the satisfaction of the Trial Court/Duty MM/ Link MM, on the conditions that The applicant shall provide the address where she would be residing after the release and shall not change the address without informing the concerned IO/ SHO, The applicant shall appear before the learned Trial Court as and when directed . The applicant shall under no circumstance leave the country without the permission of the Court, The applicant shall, upon her release, give her mobile number to the concerned IO/SHO and shall keep her mobile phone switched on at all times.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. The court further allowed present application in the aforesaid terms.
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Judgement reviewed by: Sowmya.R
