Mr. Jitendra Sethi, Senior Advocate with Mr. Shobit Dimri, Mr. Keshav Sethi, Advocates v. THE STATE OF NCT OF DELHI THROUGH SHO PS GEETA COLONY

Judgment

1. The present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 20231 (earlier Section 439 of the Code of Criminal 1 “BNSS Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 1 of 16 Procedure, 19732) seeks regular bail in FIR No. 578/2018 under Sections 302, 384 and 34 of the Indian Penal Code, 18603, registered at P.S. Punjabi Bagh, Delhi. Brief Factual Background

2. Briefly stated, the case of the prosecution is as follows:

2.1. On 14th October, 2018, a PCR Call was received at the P.S. Punjabi Bagh from the Sri Balaji Action Medical Institute regarding a person who had been brought in dead. The call was recorded vide DD No. 15A, and preliminary inquiry was entrusted to SI Rajpal. Upon reaching the hospital, the Investigating Officer collected MLC No. 7873/18 pertaining to one Nitin Gupta, who had been declared brought dead. The statement of the deceased’s father, Mr. Pradeep Gupta, was recorded on the spot.

2.2 Mr. Gupta stated that on 13th October, 2018, his son Nitin left home for the office at around 11 AM, but around 4-5 PM he returned home from Chattarpur Temple and offered sweets to his mother. Thereafter, he left from home again and returned around 11:45 PM. On his return, Nitin lay down on the sofa without saying much. When his mother asked about his whereabouts, he did not respond and went to watch television in his bedroom.

2.3 About 10-15 minutes later, Nitin called out for his father complaining of pain and to seek his assistance to lie down. He showed his father his broken fingers and stated that he had been beaten severely on his back. When Pradeep Gupta suggested calling his other son – Varun Gupta for help, Nitin initially refused fearing that the atmosphere would get tense, but 2 “Cr.P.C.” 3 “IPC” Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 2 of 16 eventually agreed due to the extent of his discomfort. Varun was called, and both family members attempted to get further details, but Nitin was initially reluctant to explain. The family members then insisted that they call the police, however, the deceased Nitin requested them not to do so.

2.4 Upon being repeatedly questioned about the cause of his injuries, Nitin disclosed that he owed a sum of ₹12,50,000/- to one Jagdish @ Jaggi (the Applicant), who, along with Rajiv @ Bille and Sanjeev @ Bablu, had brutally assaulted him with sticks at Jagdish’s office. He further cautioned that the said individuals were extremely dangerous.

2.5 Varun Gupta, brother of the deceased Nitin, removed Nitin’s T-shirt and saw several bruises on his back which had turned blue in colour, suggesting severe beatings with a stick or rod. When Nitin expressed difficulty standing, Varun helped him use the bathroom. After returning from the bathroom, Nitin collapsed. His family members then picked him up and made him lie down on the bed.

2.6 Pradeep Gupta then contacted one of Nitin’s friends, Pankaj Dawar, to ascertain what had transpired. However, Pankaj stated that he had no knowledge of any such incident and that, at the time when he last saw Nitin, he appeared to be in normal condition.

2.7 Thereafter, Pradeep and Varun helped Nitin lie down in his room and changed his clothes, as he was experiencing considerable pain. Nitin was repeatedly asking for cold water and ice, and despite the air conditioner being on, he was perspiring heavily.

2.8 Pradeep Gupta then contacted Aggrasen Hospital to request an ambulance but was informed that the hospital lacked sufficient staff to provide one. The family thereafter resolved to take Nitin to the hospital in Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 3 of 16 their own vehicle. However, as Nitin had by then become unconscious, they were unable to move him. Subsequently, an ambulance was called from Action Balaji Hospital, which arrived at approximately 3:00 AM. Nitin was placed on a stretcher and transported to the hospital, where he was declared “brought dead”.

2.9 Based on the statement of Pradeep Gupta, FIR No. 578/2018 was registered at P.S. Punjabi Bagh and investigation was initiated. The body of the deceased was shifted to Sanjay Gandhi Hospital Mangolpuri, Delhi and the postmortem was conducted and recorded under PM No. 958/18. As per the Post Mortem Report, the doctor opined the cause of death to be haemorrhagic shock as a result of multiple bruises, due to blunt object impact, sufficient to cause death in ordinary course of nature. All injuries were noted to be ante mortem in nature.

2.10. The Applicant, Jagdish @Jaggi along with the other co-accused were arrested on the same day – i.e., 14th October, 2018. During interrogation, the Applicant disclosed that he had extended a loan of ₹12.5 Lakhs to the deceased Nitin Gupta, of which only ₹3.70 Lakhs had purportedly been repaid, and that no further payment was forthcoming. Owing to this grievance, the Applicant stated that he, along with co-accused Sanjeev@Babbu and Rajeev@Bille, physically assaulted the deceased and also retained his scooty. At the instance of the Applicant, a Pointing Out Memo was prepared in respect of the first floor of Flat No. 477, Pocket-3, Paschimpuri, where the assault allegedly occurred. He further led the police to a nearby park from where a broken wooden stick (danda), wrapped in black tape, was recovered and seized vide Seizure Memo dated 14th October,

2018. The said stick was thereafter forwarded to the mortuary at Sanjay Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 4 of 16 Gandhi Hospital for expert opinion by the doctor who had conducted the postmortem examination. The medical opinion stated: “After going through PM 958/18 and examining the weapon of offence, opinion is - injuries mentioned in PM report are possible with the weapon examined or similar one”.

2.11 Subsequently, CCTV footage from a camera installed near the first floor of the alleged place of incident, pertaining to the fateful evening of 13th October, 2018, was obtained. The footage initially shows the Applicant entering the flat at 8 PM along with co-accused Sanjeev and deceased Nitin. Two minutes later, Sanjeev is seen leaving the flat, and at 8:16 PM, he appears to be carrying a wooden stick. Footage from another camera depicts both Sanjeev and Rajeev riding a motorcycle, driven by Sanjeev with Rajeev visibly holding the stick. At 9:27 PM, another person identified as Anil, a tenant residing at the top floor of the building is seen entering the flat. Pankaj Dawar (friend of the deceased) and one person identified as Mukesh are also seen entering the flat at 9:41 PM. Thereafter, at 11:10 PM, the deceased Nitin, along with Pankaj, Mukesh and Anil are seen leaving the flat. The CCTV footage reveals that the condition of the deceased Nitin was not good and he was walking down the stairs supporting himself by holding the banister.

2.12. Upon completion of investigation, a chargesheet was filed against the accused, and trial commenced before the Sessions Court. Of the 32 prosecution witnesses cited, 18 have been examined so far.

2.13 As per the SCRB Record, the Applicant has prior involvements in 07 cases, including the present FIR. The details of the SCRB Record are as follows: Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 5 of 16 S.No FIR No. Under Section 61/1/14 Excise Act Remarks Police Station Punjabi Bagh Acquitted

03.05.1997 307/34 IPC Punjabi Bagh Acquitted

15.07.1998 302/207 IPC Punjabi Bagh Convicted for 25/54/59 Arms Act 0941/2001 25/54/59 Arms Act Punjabi Bagh Acquitted Punjabi Bagh Acquitted

29.08.2008 0965/2004 307 IPC Punjabi Bagh Acquitted

01.02.2008 0578/2018 302/34 IPC Punjabi Bagh Pending Trial

4. 5.

7. Contentions raised by the Parties

3. Mr. Jitendra Sethi, Senior Counsel for the Applicant, urges the following grounds for seeking bail:

3.1. The case of the prosecution primarily rests on the testimony of three purported eye-witnesses – Pankaj Dawar, Mukesh Kumar, and Anil Vaid, all of whom have been examined before the Trial Court. None of these witnesses have supported the prosecution’s version. In particular, they have categorically denied witnessing any incident of assault by the Applicant or the co-accused persons upon the deceased Nitin.

3.2 It is admitted case of the prosecution that the deceased left the Applicant’s around 11:00 PM and was seen descending the staircase on his own. The CCTV footage corroborates that Nitin was ambulatory and conscious at the time, and later he returned home unaided. Even if the prosecution’s version is assumed to be true, it is submitted that no case under Section 302 IPC is made out. Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 6 of 16

3.3 The prosecution places reliance on statements allegedly made by the deceased to his father (Pradeep Gupta) and brother (Varun Gupta), wherein before going unconscious, the deceased named the Applicant and co- accused as the persons who beat him. However, the conversation forms part of the chargesheet and reflects that Pradeep Gupta himself described Nitin’s condition as not in conscious state of mind. He stated that “Hamey To Samajh Nahi Aa Rahhi Per Sudh Mein Nahi Hai” indicating that the deceased was not in a conscious state of mind at around 12:30 AM on 14th October, 2018, when the alleged conversation took place. Pradeep Gupta further admitted that, at that time, the deceased was unable to identity who exactly had beaten him up. Moreover, Pankaj Dawar – one of the eye witnesses stated that he left the deceased near his home at the night on 13th October, 2018, in a state of good health.

3.4 In the initial statements made by the family members of the deceased – i.e., Pradeep Gupta, Varun Gupta and Sudha Gupta, which were recorded pursuant to DD Entry No. 15A, there is no mention of any accused person. However, nearly 21 hours after Nitin returned home, their supplementary statements introduced the names of the Applicant and co-accused. No explanation has been furnished as to why this information was withheld during their earlier interactions with police, or why it finds no mention in the inquest proceedings under Section 174 Cr.P.C. or in the contemporaneous PCR form.

3.5 The afore-noted fact is also corroborated by the PCR form wherein it is categorically mentioned that the father and brother of the deceased met the police officials in the Hospital and upon their asking, the witnesses disclosed that the deceased Nitin told them that he was given beatings by Signature Not Verified Digitally Signed By:AKANSHA SINGH Signing Date:20.05.2025 20:27:57 BAIL APPLN. 4764/2024 Page 7 of 16 “someone”, not naming any person specifically.

3.6 As for the recovery of the alleged weapon of offence, a wooden stick (danda), the same was recovered from an open plot/park, reportedly in broken condition. The recovery was made without following the safeguards under Section 100(4) Cr.P.C., rendering it procedurally tainted and evidentiary value suspect.

3.7 The MLC of the deceased records injuries only on non-vital parts of the body, namely left arm, left shoulder, left scapular region, right shoulder and right scapular region. The prosecution’s case that the cumulative effect of these injuries resulted in death lacks clarity in establishing homicidal intent.

3.8 The pattern of injuries, coupled with the fact that the deceased was allowed to leave the premises alive and unaided, undermines the allegation of any intention to cause death. If the intention of the Applicant was indeed to cause death, he would not have allowed the deceased to leave his office and be taken back to his home by Pankaj Dawar and others. It is the prosecution’s own case that the Applicant’s underlying motive was recovery of a substantial financial debt owed by the deceased. In such a scenario, attributing an intention to cause death would be illogical and counterintuitive, as it would defeat the very objective by permanently extinguishing the prospect of repayment. Reliance in this regard is placed on Gurdeep Singh & Ors. v. State of Punjab4; Dalip Singh & Ors. v. State of Haryana5 and Panchiah & Ors. v. State of Karnataka6.

3.9 The criminal antecedents of the Applicant cited by the prosecution to