Shahnaz Begum vs State

Rajnish Bhatnagar, J

By way of this order, 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.

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 wife Kamlesh Saxena rushed to the spot and on reaching the spot outside the Blind

School, they saw that Akbar Ali, Shahnaz (present petitioner) his son Asif Ali (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 todayâ€. Shahnaz (present petitioner)

was using filthy language and was pushing as well as beating Ankit (since deceased)

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 ijjat 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 footpath 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.

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.

It is submitted by the Ld. counsel for the petitioner that the fundamental of the criminal jurisprudence is the presumption of innocence. In support of

this, he relied upon “Dharam Singh Vs. State of UP†(2018) 3 SCC 22. He further relied upon “Arnab Manoranjan Goswami Vs. State of

Maharashtra & Orsâ€. 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 be 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 “lalkaraâ€. 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/abetment 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 accused 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.

It is further urged by the Ld. counsel for the petitioner that PW 2 with his friends had physically 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 further 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 Large Fibroid in her Uterus & Hypothyroidism with Kidney infection &

the known case of Menorrhagia (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.

On the other hand, the State has filed the status report and 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 petitioner 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 exhorting him. She further urged that the 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.

The petitioner in the alternative is seeking interim bail for a period of 45 days on the medical grounds. On this aspect, it 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.

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 from the facts and circumstance arising in each case. One of

the circumstances to consider the gravity of the offence is also the term of sentence i.e. prescribed for the offence, the accused is alleged to have

committed.

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.

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 application as far as it relates to grant of regular

bail of the petitioner is concerned, the same is dismissed.

Now coming to the grant of interim bail of 45 days to the petitioner on medical grounds, I have perused the medical report received from 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 and planning further management. Therefore, 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.

List on 09.02.2021.