Ramvilas @ Harish (In J.C.) v. State NCT of Delhi

JUDGMENT R.V. EASWAR, J.; This is anapphcationfor grantofregularbail underSection439 ofthe Cr.P.C. in case F.I.R. No.73/2011 dated 12.3.2011 registered in P.S. Nihal Vihar. The applicantis Ramvilas@Harishwho is presentlyconfinedin Jail No. 1, Tihar in judicial custody.

¶2Accordingto the prosecutionthe case againstthe applicantis like this. Thebodyof MahenderSingh,sonof Ramdasandresidentof RZD-115,Nihal Vihar was found in front of the house according to the information received vide DD No.9A/10A by the Police Station on 12.3.2011. The body was sent u to SGM Hospital, Mangol Puri. According to Babli, the wife of late Mahender Singh (who was also known as Jitender), some unknown persons had thrown the dead body in front of house, after killing him. She further statedthat the deceasedis a vegetablevenderand had come back from work at nightat 11:00p.m. on 11.03.2011and aftertaking food hewentout saying thathehadto getbackthesum of?500/-andweightof 1kilo from theperson to whom he had lent them. Thereafter, at around 5'0 clock in the morning on

12.03.2011 there was a knock on the door of the house. All the three persons in the house, i.e. Babli,the applicantwho is the brotherof the deceasedand his imcle Prem Pal woke up andwhen they openedthe door, they found that MahenderSingh was lying dead oppositethe house wearing only shirt and underwear and that his pants, jacket and chappals were lying nearby. According to Babli, the applicant and his uncle took the body inside the house. The landlord of the house, one Amar Singh, thereafter called the doctor and police. When the doctor came he pronouncedMahenderSingh dead. Accordingto the police, there was sign of injury near the right hand fmger and signs of ligaturemarksonthe neck ofthe deceased. The date and time of occurrencewas statedto be the interveningnight between 11"^ and 12^March,2011,between11 p.m. to 5a.m.

¶3On 19.3.2011 one Ashok Kumar, son of Babu Ram, gave a statement to the policeunder Section161 ofthe Cr.P.C.Accordingto the statement,he had come from Bareh to Delhi to take his sister Shakuntala back to Bareli. She was married and living in Delhi. He stated that he was staying in the house which was taken on rent by his uncle Prempal in Nihal Vihar. It was the house where Mahender and his brother Ramvilas, the applicant herein, were also staying. On 12.3.2011,at about 11 p.m., when he (AshokKumar) was in the house of Mahender and Ramvilas, he heard a knock in the door. He opened the door and foimd that Mahender @ Jitender was there. Mahender came inside and kept the weights (Batta) in the gallery on the ground floor. Then he went to his room. After sometime Ashok Kumar noticedMahendergoing out of the house. It appearsthat AshokKumarwas stayinginthe firstfloorofthe houseand Ramvilas@Harishwas also staying in the same room. Accordingto Ashok Kumar, after Mahender@ Jitender went out of the house,Ramvilas,the applicantherein,leftthe room andwent to the room of his Bhabhi,i.e., Babli. After abouthalf-an-hourMahender@ Jitender came back and saw his wife in the bed with Ramvilas @ Harish. He got angry and startedfightingwith Ramvilas. On hearingthe noise, Ashok Kumar came down to enquire about the reason and found that the applicant had caughthold by Mahender@Jitenderand had put him down on the bed and was holdinghim down. Bablihad caughthold ofthe legs ofMahender. Accordingto AshokKumar,Ramvilas@Harishputa pillowonthe mouthof Mahender but somehow Mahender managed to remove it. Thereafter Ramvilas @ Harish put a cloth around the mouth of Jitender and tied it. Then, with the help of an electricity wire, Ramvilas @ Harish strangulated Mahender; he did not release the wire till Mahender died.

¶4Ashok Kumar, who stated that he watched all this in horror got scared and hid himself inside the bathroom. Thereafter Harish and Babli took the dead body of Jitender and put it near the main gate of the house after removingthejacket,pants andslippersandthrowingthem away. Whenthey were returning to the house, Ashok Kumar could not control his cough. When he coughedhe was seenbythe applicantherein. He threatenedAshok. Kumar that if he told anybodyabout the incident,he (the accused)will kill him. Ashok Kumar was scared and he came back to his room and could not sleep due to fear. However,Harish, the applicantherein, came back to the room and slept soundly. At 4:30 AM in the morning,Harishwoke up and told Ashok Kumar to go out and knock the door of all the houses in the localityand wake up everybody. Accordingto Ashok Kumar, he went out and knocked only the door of the landlordAmar Singh. In the meantime Harish and Babli had placed the body of Jitender@ Mahenderon the bed. The wife of Amar Singhcame alongwithhertwo sons. Accordingto Ashok Kumar, the applicanthereinhad told him that wheneveranybody enters the house,he shouldstartrubbingthe feet ofthebodyofMahender@Jitenderso as to avoid suspicion. ThereafterAmar Singh also came and he called the BAILAPPLN.744/2013 Page4 of9 doctor. The doctor came after some time and said that Mahender @ Jitender was dead. Amar Singh thereafter informed the police official who came and made enquires. Accordingto Ashok Kumar, he left the place and did not return because of fear since Harish had threatened him with dire consequences if he tells anybody about the incident.

¶5On the same day, i.e. 19.3.2011,the witness, namely, Ashok Kumar made a statement under Section 164 Cr.P.C. before the Metropolitan Magistratenarratingthe aforesaidevents. The statementwas recordedby the MM.

¶6The accusedHarish@ Ramvilas,the applicanthereinwas taken into custody where he remains till now.

¶7In the course of the trial the witness Ashok Kumar retracted from the statementmade by him under Section 164 Cr.P.C. before the M.M., saying thathe had giventhe statementto the policeand the Magistrateunder threat from the police. When beingcross-examinedby the learnedAPP, heresiled from his statement made under Section 164 Cr.P.C. He stated that the police confinedhim in the police stationand threatenedhim to make a statementas per their directions. It was only underthose circumstances,i.e. underthreat from thepolicethathemadea statementunderSection164 Cr.P.C.beforethe MM.

¶8It is in the above circumstances that the applicant Ramvilas @ Harish has applied for regular bail. The argument of the learned coimsel for the applicant is that since the only eye-witness in the case has retracted his statement made under Section 164 Cr.P.C. and has categorically stated that the statementwas givenunderpolice threat,thereis no otherevidenceagainst theapplicantwhichentitleshim to the grantofbail. Hesubmittedthatonthe day of the incident,when the policevisitedthe spot and made enquiriesthey did not recordany statementeitherfrom Babli,the wife of deceasedor from the applicant,-who is the younger brother of the deceased. It is further submittedthat the incidenttook place on the interveningnight between ll'*' and 12*^ March, 2011 andthe statementfrom AshokKumarwas taken under Section 161 and Section 164 of the Cr.P.C. after a delay of one week, i.e., on

19.3.2011and that too, aftera new I.O. tookoverthe case on that date. It is contendedthat not onlydidthe eyewitnessretractfrom his earlierstatement, but he also stated in the trial court that the statement under Section 164 was made by him under police threat. It is submittedthat the accusedhas spent abouttwo anda halfyears injudicialcustodyandsincemost of the witnesses have alreadybeenexaminedbythe trialcourt,bailshouldbegranted.

¶9On the otherhandthe leanedAPP stronglyopposedthe prayerforbail. Relyingon the statusreport,it was contendedthat the electricwire which is the weapon of offenceand which was Used to strangulatethe deceasedwas BAILAPPLN.744/2013 Page6 of9 recovered at the instance of the applicant herein and that as per the medico-legal opinion, the death of Mahender @ Jitender was due to asph>^a consequentto ligaturestrangulationwiththe wire. She pointedout that there were injury marks on the neck of the deceased which were caused by the strangulation.She also pointedoutthataccordingto the statusreportfiledby the I.O., till now 15 out of the 28 witnesses have been examined and out of the 13 witnesses remaining to be examined, there were two important witnesses, i.e., M.M. who recorded the statement of Ashok Kumar under Section164Cr.P.C.andthe InvestigationOfficerwho areyet to be examined. Accordingtothe statusreport,the next date ofhearingbeforethe trialcourtis

29.7.2013 and if bail is granted, the accused may jump bail and may also threatenthe witnesses. She, therefore,prayedthat the applicantshouldnot be granted bail.

¶10In his brief rejoinder, the learned counsel for the bail-applicant submittedthatthetest reportswere in favour of his clientin as much as they have stated that there was no blood or saliva of the deceased found in the pillow allegedly used by the accused which shown that there was no strangulation. He also submittedthat no skin pieces were found in the wire whichcouldhave supportedtheprosecution. It was reiteratedthattheonly so called eye witness in the case has retractedfrom the statementmade under Section 164 and therefore there is no justification for holding the bail-applicant in custody any more.

¶11On a careful consideration of the matter, I am of the view that bail cannotbe granted. It is true thatthe applicanthas spentabouttwo and a half years in custodybut that cannot be the only reason to enlargehim on bail. The other circumstances have to be taken in to consideration. These ^ circumstancesare that the only eye witnessin the case, who made statement beforethe Magistrateunder Section 164 Cr.P.C., has retractedtherefromin the courtduringthe trial. TheMagistratewho recordedthe statementis yetto be examined. His evidence is likely to throw considerablelight on the veracityofstatementof the witness,i.e., Ashok Kumar. The Investigation Officeris also yet to be examined. In additionto thesetwo, thereare 11 more witnesses who are yet to be examined. In this situation,I do share the apprehensionofthe prosecutionthat the accused-applicantmay attempt to influencethe witnesses,ifenlargedon bail. The so calleddelay,pointedout by the learnedcoimselfor the applicant,betweenthe dateofoccurrenceofthe crime and the date of the statementmade by the eye witness under Section 164 ofthe Cr.P.C.,was explainedby the eye witness Ashok Kumar in the statementmadeunderSection164 Cr.P.C.itselfthathe did not ventureto stay in the house wherethe crimetook place and ran away due to fear instilledin his mind due to threatsmade by Ramvilas@Harish. Moreover,the learned BAILAPPLN.744/2013 ® ^ APP did point out in the course of her argumentthat it is quite strangethat neither BabH, the wife of the deceased Mahender @ Jitender, nor the applicantwho is the youngerbrotherof the deceased,calledthe doctoror the police and it was only the landlordAmar Singh who called both. She also read out in Court the statementmade by Amar Singh on 13.3.2011where he statedthatHarish(the applicant)asked him notto call the policeandthathe was planningtotakehis brother'sbodytothevillagefor cremation. All these aspectswill be examinedby the trial court.

¶12Having regard to the aforesaidcircumstances,the prayer for grant of bail under Section 439 of the Cr.P.C.is rejected. The trial court is directedto completetheexaminationofthe witnessesatthe earliest. The bail applicationis accordinglydismissed. <a (R.V.EASWAR) JUDGE MAY 28,2013 Bisht BAILAPPLN.744/2013 Page9 of9

* IN THE fflGH COURT OF DELHI AT NEW DELHI Reservedon:24'^May, 2013 % DateofDecision:28"'May, 2013 + BAIL APPLN. NO.744/2013 RAMVILAS@HARISH(IN J.C.) Petitioner Through: Mr.Vikas Padora and Mr.Chaman Lai, Adocates. versus STATE NCT OF DELHI Respondent Through: Ms.JasbirKaur,APP withInsp. Pramendra Singh, P.S. Nihal Vihar CORAM: MR. JUSTICE R.V. EASWAR