Delhi High Court – Orders
Rahul Bainsla vs State Of Nct Of Delhi on 7 August, 2025
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 2858/2023 & CRL.M.A. 13112/2024,
CRL.M.(BAIL) 1206/2023
RAHUL BAINSLA .....Applicant
Through: Mr. Ajit Nair and Mr.
Sumit Rana, Advs.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Ms. Richa Dhawan, APP
for the State with Insp.
Jaspal, PS Burari and SI
Heera Lal, PS Wazirabad.
Mr. Umesh Sharma, Mr.
Peeyush Kaushik, Mr.
Siddharth Kaushik and Mr.
Ritesh Kaushik, Advs. for
the victim.
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 07.08.2025
1. The present application is filed seeking regular bail
in FIR No. 1360/2015 dated 01.11.2015, registered at Police
Station Burari, for offences under Sections 365/34 of the Indian
Penal Code, 1860 (‘IPC‘). Chargesheet has been filed in the
present case for offences under Sections 365/302/201/120B of
the IPC and Sections 25/27/54/59 of the Arms Act, 1959.
2. The brief facts of the present cases are as follows:
2.1. On 29.10.2015, a missing report was lodged by one Sh.
Indraj for the deceased Pawan Kumar. On 01.11.2015, the
complainant namely- Sh. Rinku, gave a statement that on
28.10.2015, his elder brother Pawan Kumar was leaving home,
for some money related work, after he had received a call from
one of the accused persons namely- Jitender @ Happy. He
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alleged that since then, the deceased Pawan Kumar did not return
home. He raised suspicion that Jitender @ Happy and his brother
Narender @ Pappan had kidnapped his brother, as there had been
some money related dispute between them.
2.2. On 01.11.2015, an unidentified dead body was recovered
in the area of Police Station Tronica City, and was identified as
the deceased Pawan Kumar. The Post Mortem of the dead body
was conducted wherein the doctor mentioned the external injuries
as “Lacerated wound in area 20*20 cm in all skull bone and
cause of death as “shock and hemorrhage due to ante mortem
injury”.
2.3. During the course of investigation, accused Jitender @
Happy was arrested on 03.11.2015, who disclosed that he along
with his associates including the applicant herein and two more
persons namely Aman Sharma @ Jitender Sharma and Rahul
Kumar, had murdered the deceased near Tronica City on
28.10.2015. He stated that he and his brother Narender @ Pappan
had arranged the weapons of offence being a Desi Katta and
Pistol from accused Mohd. Shakib and the applicant.
2.4. The second Post Mortem of the body of the deceased was
conducted on 04.11.2015, at the request of family members of
the deceased. The cause of death in the second Post Mortem
Report reveals that Injury No. 4 and 5 are caused by projectile of
firearm.
2.5. The accused Aman Sharm @ Jitender Sharma and Rahul
Kumar were arrested from their house on 04.11.2015. Accused
Aman Sharm @ Jitender Sharma disclosed that on 28.10.2015
one Uber cab was booked by Jitender @ Happy, from Karawal
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Nagar to Tronica City. He stated that he travelled in the said cab
with the accused Jitender @ Happy and the deceased Pawan
Kumar.
2.6. The Uber driver namely-Prem Chand Rahelia, was made
an eye-witness in the present case and was examined. In his
testimony, he deposed that on 28.10.2015, his cab was booked by
Jitender @ Happy, and he had driven the three people including
accused Aman Sharma @ Jitender Sharma, Jitender @ Happy as
well as the deceased, when he was asked to stop the cab at Pushta
of Chaman Vihar. He has stated that after waiting for a while,
two persons, who were identified by him as the applicant herein
and Rahul Kumar, arrived at the spot. He stated that all five
persons boarded the cab. He stated that when they reached at the
scheduled destination, which was in the middle of the fields, the
accused persons offered him to have dinner with them. He stated
that they also had a bottle of liquor with them. He deposed that
after eating dinner, the accused persons Jitender @ Happy, Aman
Sharma @ Jitender Sharma, Rahul Kumar along with the
applicant got up and stood behind the diseased, and started firing
at the deceased. He stated that thereafter, when he ran to his taxi,
he was chased by the accused persons, however he somehow
managed to escape. He deposed that the accused persons were
causing injuries on the face of the deceased with stones, in order
to spoil his identity, whereafter they threw his body in the nearby
nala.
2.7. The applicant was arrested on 07.11.2015, at the instance
of accused Jitender @ Happy, Aman Sharma @ Jitender Sharma
and Rahul Kumar.
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3. The learned counsel for the applicant submits that the
applicant is innocent and has been falsely implicated in the
present case. He submits that the prosecution has based the entire
case on the eye-witness namely-Prem Chand Rahelia who was
planted by them, and the same is evident from the numerous
discrepancies and improvements in his statements.
4. He submits that are contradictions in the two Post Mortem
Reports filed by the State, which raises suspicion upon the case
of the prosecution.
5. He submits that the applicant was arrested in the present
case on 07.11.2015. He submits that the applicant has been in
custody since then apart from the period when he was granted
interim bail under the HPC guidelines and medical reasons,
whereafter he had duly surrendered.
6. He submits that the applicant has never violated any
conditions imposed upon him while he was on interim bail and
had also surrendered on time.
7. He submits that the investigation is complete in the present
case and since no recovery was made at the instance of the
applicant, he is entitled to be released on bail in the present case.
8. Per contra, the learned Additional Public Prosecutor
(‘APP’) for the State and the learned counsel for the victim
vehemently oppose the present bail application.
9. They submit that the allegations levelled against the
applicant are heinous in nature and in such circumstances, no
relief should be granted to him.
10. They further submit that the complainant, Sh. Rinku has
reported threats received by him to withdraw the present case,
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which has led to the registration of FIR No. 213/2024 under
Sections 195A/506/34 of the IPC, against Jitender @ Happy and
his two unknown associates.
11. I have heard the learned counsels for the parties and
perused the record.
12. It is settled law that the Court, while considering the
application for grant of bail, has to keep certain factors in mind,
such as, whether there is a prima facie case or reasonable ground
to believe that the accused has committed the offence; the nature
and gravity of the accusation; severity of the punishment in the
event of conviction; the danger of the accused absconding or
fleeing if released on bail; reasonable apprehension of the
witnesses being threatened; etc. However, at the same time, the
period of incarceration is also a relevant factor that is to be
considered.
13. The allegations in the present cases are grave and heinous
in nature. It is the prosecution’s case that the accused persons
murdered the deceased with the use of firearms and disposed of
his body. It is stated that one blood-stained T-shirt was recovered
at the instance of the applicant.
14. The learned counsel for the applicant argues that there are
two Post Mortem Reports in the present case, one dated
01.11.2015 and one having been conducted on 04.11.2015 which
are contradictory in as much as the bullet wound was not found
in the first Post Mortem Report wherein the cause of death was
found to be sock and haemorrhage. In contrast, the second post-
mortem report records the cause of death as two bullet wounds.
Such a material contradiction casts a serious doubt on the
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prosecution version, particularly as to how the alleged bullet
injuries could have been entirely omitted in the first post-mortem
examination.
15. The motive alleged by the brother of the deceased namely-
Sh. Rinku, reveals that the co-accused persons Jitender @ Happy
and his brother Narender @ Pappan were involved in some
monetary dispute with the deceased. No motive has been
established at this stage to link the applicant to the present
offence.
16. The entire case is based on circumstantial evidence apart
from the alleged recovery of blood-stained T-shirt and the
evidence given by the eye-witness Prem Chand Rahelia. The
learned counsel for the applicant argues that the said eye-witness
has been planted by the police in connivance with the
complainant. It is submitted that there are several improvements
in the testimony of Prem Chand Rahelia which diminish his
genuineness as an eye-witness.
17. It is relevant to note that the prosecution alleged that the
applicant was arrested on 07.11.2015 pursuant to the disclosure
statement of the other accused persons whereas the sole alleged
eye-witness Prem Chand Rahelia, during his cross-examination,
stated that on 05/06.11.2015 when he visited the Police Station,
he had seen the applicant there.
18. While the veracity of the eye-witness’s evidence would be
finally determined after the entire evidence is led, however, it
cannot be denied at this stage, that doubt has been created in
regard to the manner in which the prosecution claims to have
taken the applicant in custody in the present case.
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19. It is settled law that in the event of there being even some
doubt as to the genuineness of the prosecution, in the normal
course of events, the accused is entitled to bail. [Ref : Ram
Govind Upadhyay v. Sudarshan Singh : (2002) 3 SCC598]
20. The Nominal Roll of the applicant reveals that the
applicant has been in custody for over 7 years over. Despite more
than seven years having elapsed, the trial is at the stage of
examination of prosecution witnesses. It is pointed out that only
around 30 out of the 81 listed prosecution witnesses have been
examined in the present case.
21. The Hon’ble Apex Court in the case of Union of India v.
K.A. Najeeb : AIR 2021 SC 712 held that once it is obvious that
a timely trial would not be possible, and the accused has suffered
incarceration for a significant period of time, the courts would
ordinarily be obligated to enlarge them on bail.
22. While it cannot be denied that the offences alleged against
the applicant are heinous in nature, the Hon’ble Apex Court in
the case of Javed Gulam Nabi Shaikh v. State of Maharashtra
and Another : Crl.A.2787/2024 has observed as under:
“19. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State
or any other prosecuting agency should not oppose the plea
for bail on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of the
nature of the crime.
20. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to be
innocent until proven guilty cannot be brushed aside lightly,
howsoever stringent the penal law may be.”
23. The continued incarceration of the applicant will result in
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the denial of his fundamental right to life and personal liberty
guaranteed under Article 21 of the Constitution of India, when
the trial is not likely to conclude in near future.
24. The object of Jail is to secure the appearance of the
accused during the trial. The object is neither punitive nor
preventive and the deprivation of liberty has been considered as a
punishment.
25. It is not denied that the complaint regarding threats have
been registered against the accused Jitender @ Happy and not the
present applicant. The applicant has been granted interim bail on
different occasions and is stated to have duly surrendered on
time. However, appropriate conditions ought to be put to allay
the apprehension of the applicant tampering with the evidence or
evading the trial.
26. It is stated that the applicant has two minor daughter and a
wife who are dependent upon him for their sustenance. The
Status Report dated 20.03.2024 verifies the said fact and further
discloses that the school fee of the applicant’s daughter remains
unpaid. In these circumstances, the continued incarceration of the
applicant warrants reconsideration.
27. Furthermore, perusal of the latest Status Report dated
09.03.2025 reveals that as per the enquiry conducted by the
Special Cell, no specific threat has been received by the
complainant since 2019.
28. In view of the above, the applicant is directed to be
released on bail on furnishing personal bonds for a sum of
₹20,000/- with two sureties of the like amount, subject to the
satisfaction of the learned Trial Court, on the following
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conditions:
a) He shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case or tamper with the evidence
of the cases, in any manner whatsoever;
b) He shall under no circumstance leave the boundaries of
the country without the permission of the Trial Court;
c) He shall appear before the learned Trial Court as and
when directed;
d) He shall provide the address where he would be
residing after his release and shall not change the
address without informing the concerned IO/ SHO;
e) He shall, upon his release, give his mobile number to
the concerned IO/SHO and shall keep his mobile phone
switched on at all times.
29. 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 by filing an application seeking cancellation of bail.
30. It is clarified that any observations made in the present
order are for the purpose of deciding the present bail application
and should not influence the outcome of the Trial and also not be
taken as an expression of opinion on the merits of the case.
31. The bail application is allowed in the aforementioned
terms.
AMIT MAHAJAN, J
AUGUST 7, 2025
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