SHAHNAZ BEGUM  Vs STATE

BAIL APPLN. 3582/2020 Page 1 of 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 19.01.2021
% Pronounced on : 28.01.2021
+ BAIL APPLN. 3582/2020
SHAHNAZ BEGUM ….. Petitioner
Through: Mr. Amzad Khan , Advocates.
versus
STATE ….. Respondent
Through: Ms. Rebecca M. John, SPP with Mr.
Vishal Gosain, Advocate
CORAM:
HON’BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
RAJNISH BHATNAGAR , J.
1. By way of this ord er, I shall dispose of the present petition filed under
Section 439 Cr.P.C. R/W Section 482 Cr.P.C. filed on behalf of the
petitioner /applicant for grant of regular bail or in the alternative interim bail
for a period of 45 days in case FIR No. 23/2018 U/s 302/323/34 IPC ,
registered at Police Station Khyala , Delhi.
2. Briefly stated , the facts of the case are that on 01.02.2018, at about
8:00 p.m. complainant Yashpal Saxena received a call from his friend Sh.
Gulshan on his mobile No. 7011710645 informing him that some people
were fighting with his son namely Ankit Saxena (since deceased) outside
Blind School. On receiving the said phone call, complainant alongwith his
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wife Kamlesh Saxena rushed to the spot and on reaching the spot outside the
Blind Scho ol, they saw that Akbar Ali, Shahnaz (present petitioner) his
son Asif A li (JCL) and brother -in-law Md. Salim were fighting with
complainant’s son Ankit (since deceased). Complainant heard all of them
saying “ we will not leave you today ”. Shahnaz (pres ent petitioner) was using
filthy language and was pushing as well as beating Ankit ( since deceased)
3. Complainant’s wife Kamlesh Saxena tried to stop Shahnaz (present
petitioner) from beating her son. Shahnaz pushed the complainant’s wife and
started beating her. Complainant intervened to stop Shahnaz from beating
his wife but since he is a heart patient, he was unable to stop the scuffle
between Shahnaz and his wife. In the meantime, co -accused Akbar Ali, Md.
Salim and Asif said “ Hamari ghar ki ijj at ke sath khilvad karne ka natija
tuje batate hain ” and they surrounded Ankit (since deceased). Md. Salim
held his right hand, Asif held his left hand and Akbar Ali pulled his hair and
slit his throat with a knife. Ankit (since deceased) fell on the fo otpath and
was removed to the hospital by the complainant and his wife. On the basis of
the statement of the complainant recorded on the night on 01.02.2018, the
present FIR was registered at PS Khyala.
4. I have heard the Ld. counsel for the petitioner, Ld. APP for the State
and perused the Status Report filed by the state and also perused the records
of the case.
5. It is submitted by the Ld. counsel for the petitioner that the
fundamental of the criminal jurisprudence is the pre sumption of innocence .
In support of this , he relied upon “Dharam Singh Vs. State of UP ” (2018) 3
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SCC 22. He further relied upon “Arnab Manoranjan Goswami Vs. State of
Maharashtra & Ors ”. SLP (Criminal) Diary No (s) 24646/2020, vide order
of bail dated 11 .11.2020 to urge that personal liberty of a person is
paramount. He further urged that the petitioner has clean past antecedents
and she is in J.C. for the last 2 years and the testimony of all material
witnesses have been concluded and no purpose would b e served by keeping
her in J.C. He further argued that it is a settled law that bail is a rule and
jail is an exception and he relied upon “Sanjay Chandra Vs. CBI ” (2012) 1
SCC 40. He further argued that the petitioner has been falsely implicated
and the only role assigned to her is that of giving a “lalkara ”. He further
argued that the testimony of PW 2 is not at all trustworthy and is contrary to
the eye witness account of PW 22. He further argued that Lalkara/ab etment
is a weak type of evidence and no conviction can be based against the
person, alleged to have exhorted the actual assailants, unless the evidence in
this respect is clear, cogent and reliable. He further urged that it was the
husband of the petitioner who is alleged to be the main acc used in this case
was the actual complainant to the police , who had made the call to the PCR
which is evident from the statement of PW 15 ASI Gangadharan.
6. It is further urged by the Ld. counsel for the petitioner that PW 2 with
his friends had physic ally assaulted the main accused Akbar Ali and Mohd.
Ali, whose medical examination was conducted by PW 9 Dr. R.K. Dubey
and they both were badly beaten by blunt object but no action was taken
against the relatives/friends of deceased Ankit Saxena. He fur ther urged that
the petitioner is a 42 years old ailing woman and her daughter aged around
15 years is not keeping well and the petitioner is suffering from Critical
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Large Fibroid in her Uterus & Hypothyroidism with Kidney infection & the
known case of Men orrhagia (excessive bleeding per vaginum) and
Dysmenorrhea which is affecting the petitioner’s health adversely &
petitioner’s health condition is critically getting deteriorated day by day.
7. On the other hand, the State has filed the status report a nd Ms.
Rebecca M. John, SPP opposed the grant of regular bail to the petitioner on
the ground that the victim was 21 years old boy, whose throat was slit by the
petitioner’s husband. She further urged that the complainant’s wife tried to
stop the petition er from beating her deceased son but the petitioner pushed
the complainant’s wife and started beating her. She further urged that there
are specific allegations against the petitioner where she exhorted her
husband that in the name of Allah , he should not spare Ankit Saxena
(deceased). She further urged that Ankit Saxena (since deceased) was
brutally murdered and his throat was slit by the husband of the petitioner and
the petitioner was very much present there and exhort ing him. She further
urged that th e case is at its advance stage and the role played by the
petitioner has been recorded in the evidence of the eye witnesses PW 2, PW
13, PW 17 and PW 22.
8. The petitioner in the alternative is seeking interim bail for a period of
45 days on the medical g rounds. On this aspect, i t is submitted by the Ld.
SPP that at this stage, the petitioner should not be released on interim bail on
the medical grounds as she has been advised to follow up with the doctors
on 27.01.2021 for the purpose of review of her reports and planning of
further management.
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9. Now coming to the grant of regular bail on merits. In my opinion, the
petitioner does not deserve to be released on bail as at this stage, deeply
analyzing the testimonies of the eye witnesses PW 2, PW 13, PW 17 and
PW 22, might cause prejudice to the case of either of the parties and at the
stage of bail the entire material is not to be discussed on merits. At the time
of grant of bail , the gravity of the offence is an aspect which is required to
be kept in view by the Court. The gravity for the said purpose will have to
be gathered fr om the facts and circumstance arising in each case. One of the
circumstance s to consider the gravity of the offence is also the term of
sentence i.e. prescribed for the off ence, the accused is alleged to have
committed.
10. I have perused the judgments cited by the Ld. counsel for the
petitioner but the same are differentiable and ultimately the consideration is
on case to case basis of the facts involved therein.
11. In the instant case, the petitioner has been facing trial for the offence
U/s 302/323/34 IPC. The case is at its final stages, therefore, keeping in
view the facts and circumstances of this case, no ground for grant of regular
bail is made out, so, the app lication as far as it relates to grant of regular bail
of the petitioner is concerned, the same is dismissed.
12. Now coming to the grant of interim bail of 45 days to the petitioner on
medical grounds, I have perused the medical report rece ived fro m the
Medical Supdt. ABVIMS and Dr. R.M.L. Hospital dated 12.01.2021 ,
wherein, the petitioner has been advised to follow up with histopathology
reports on 27.01.2021 in the Gynae OPD at 0900 hrs. for review of reports
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and planning further management. There fore, as far as the relief for grant of
interim bail for 45 days is concerned, the application in this respect, is kept
pending and the report from R.M.L. Hospital is awaited.
13. List on 09.02.2021.
RAJNISH BHATNAGAR, J
JANUARY 28, 202 1
Sumant
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