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Delhi High CourtIndian Cases

Subhash Gupta vs Delhi (Delhi Admn.) on 13 November 1997

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Delhi High Court
Subhash Gupta vs Delhi (Delhi Admn.) on 13 November, 1997
Equivalent citations: 1998IAD(DELHI)437, 1998(44)DRJ305
ORDER

Anil Dev Singh, J.

1. By this petition the petitioner, a M.C.D. contractor, who is one of the accused in Sessions Case No. 75/97, FIR No. 340/96, P.S.Okhla Industri-

al Area, under sections 364/302/201/216/411/120B/ 34, IPC seeks bail. The accusation against the petitioner is that he along with his associates, namely, Kamal Singh @ Shaily, Vibhor Singh @ Lovi, Vijay Mohan Sharma @ Minto, Dr. Hemant Kalra, Viney Kumar @ Vinu, Ravi Prakash @ Ravi @ Shard Gupta/Agarwal, Kamal Kumar @ Pinki and Jaindender Kumar Tyagi @ JK, were involved in the macabre crime in which three persons were murdered. The victims were Dr. Sunil Kaul, proprietor of Personal Point, and his two employees Sujata Saha and Deepa Sharma. The petitioner had known accused Ravi Prakash as he happens to be the brother-in-law of one Vijay Prakash who was posted as an Executive Engineer in the M.C.D. From January 1994 to October 1995. Ravi Prakash stayed in the flat of the petitioner at Greater Kailash Part II from March 995 till June 1995. As per information gathered during the investigation, several criminal cases are pending against him. Prosecution has also brought to the fore the accusation of alleged ill will between Vijay Prakash and one Zile Singh contractor. There was a murderous attack on him for which case F.I.R. No. 298/95 was registered. The involvement of Ravi Prakash and petitioner Subhash Gupta was suspected in the incident. Subhash Gupta in the year 1995 joined Personal Point and was allegedly attracted towards Sujata Saha. Sujata Saha spurned the advances of Subhash Gupta. Subhash Gupta suspected Sujata Saha to be involved with Dr. Kaul and this, according to the counsel for respondent, led to the showing of the seeds of conspiracy resulting in the murders. In the evening of June 6, Dr. Sunil Kaul, Sujata Saha and Deepa Sharma visited the office of accused Subhash Gupta, located at M.C.D. Office, Okhla, as Dr. Kaul wanted to expand his business and for this purpose was expecting loan from him. It is from this place that three of them were kidnapped by the accused and before doing that they were drugged which is indicated by the recovery of empty ampoules of calmpose injections from the office of the petitioner and the statement of one Madan Lal recorded under section 161 of Code of Criminal Procedure according to which three of them while coming out of the office of the petitioner and walking towards the cars were being supported by the accused. While Sujata Saha and Deepa Sharma were made to sit in the BMW Car of the petitioner which was standing outside the M.C.D. Office, Dr. Kaul was put in his own Maruti 1000. There was a third car, Maruti 800, which had a U.P. number. In the BMW car, driven by Subhash Gupta, besides him and the above said two ladies, accused Vijay Mohan Sharma @ Minto and Kamal Kumar @ Pinki were also seated. Maruti 1000 was driven by accused No. 2 Kamal Singh @ shaily, and besides him and Dr. Kaul, accused Ravi Prakash and accused Dr. Hemant Kalra were also seated, Maruti 800 was driven by accused Vibhor Singh @ Lovi. All the three cars left the office of the petitioner one after the other. On the night intervening 6th and 7th June 1996, Nitin Gupta, son of the petitioner Subhash Gupta, lodged an F.I.R. No. 340 of 1996 under section 365 I.P.C. at P.S. Okhla as the latter had not returned home. He along with the F.I.R. produced a driving licence of Dr. Kaul which was found by him in the office of Subhash Gupta. The police registered the FIR and visited the office of Subhash Gupta where torn cheques of Rs. 6 lacs each were seized along with the broken ampoules of calmpose and torn pieces of ransom note in the handwriting of Subhash Gupta were found. The ransom note was pieced together which conveyed that the petitioner had been kidnapped and the kidnappers were demanding a ransom of Rs. 50 lacs. On 7th June 1996 the car of Dr. Kaul was found abandoned at Hodal. On the same day at about 3.30 P.M. dead body of Dr. Kaul was found in a field at Hodal. The body bore two bullet injuries. On 9th June 1996 dead bodies of Sujata Saha and Deepa Sharma were recovered in a highly decomposed state at Bhind, Moraha M.P. On 10th June 1996 a call was received at the house of Subhash Gupta that he was in Bombay in Hotel Leela. On receipt of this information, a police party under the charge of Inspector Balwinder Singh was sent to Bombay. The petitioner and his BMW car were found by the police party at the above said hotel. The BMW car of the petitioner was inspected at Bombay. As per the report of the CFSL expert at Bombay, blood stains on the mat of the car were found. The expert opined that the stains found in the car were of human blood. From the dicky of the car, fibres were recovered and as per the report of the CFSL at Bombay the fibres were from the bed sheet in which Sujata Saha’s body was wrapped.

The investigation mounted by the Investigating Agency culminated in the filing of the charge sheet against the petitioner and nine others accused, namely, Kamal Singh @ Shaily, Vibhor Singh @ Lovi, Vijay Mohan Sharma @ Minto, Dr. Hemant Kalra, Viney Kumar @ Vinu, Ravi Prakash @ Ravi @ shard Gupta/Agarwal, Kamal Kumar @ Pinki and Jaindender Kumar Tyagi @ JK. All the accused are standing their trial before the learned Additional Sessions Judge. Petitioner moved a bail application before the trial court which was rejected on 11th August, 1997. It may be pointed out that this application was filed on the ground that he was suffering from depression and his condition warranted his release from jail. Having failed to secure the bail from the trial court the petitioner has moved the instant petition seeking bail.

Learned counsel for the petitioner in support of his bail application argued that the petitioner himself was victim of kidnapping by Ravi Prakash and his associates and was not in any manner involved in the murders. It was pointed out that pieces of ransom note and two torn cheques of Rs. 6 lacs each were found from the office of Subhash Gupta by the police. He further submitted that the kidnapping of the petitioner along with the three deceased is also proved from the fact that when he was examined on 11th June 1996 at Bombay he was having the following injuries:-

1. Radish Blue bruise with swelling measuring 8 cm x 3 cm on the back of chest situated on centre.
2. Radish blue bruises with swelling and pain measuring 8 cm x 3 cm on the back of the right chest – present vertically.
3. Injection prick mark present over both elbows.
He submitted that as per the opinion of the doctor the injuries were of a duration of more than 48 hours and hat the injuries 1 and 2 were caused with blunt force and injury No. 3 was caused by an injection prick. Learned counsel also submitted that the petitioner was in love with Sujata Saha and there was no reason for him to kill her. He further pointed out that he had already advanced money to Dr. Kaul for which he was getting good return and this being so, there was no reason to get rid of Dr. Kaul. He also submitted that pen and gold chain belonging to the petitioner were recovered from the other accused persons which is a pointer to his innocence as in case he had not been a victim his personal effects would not have been taken over by the other accused persons.

On the other hand, learned counsel for the respondent submitted that the petitioner does not deserve bail as there are grave accusations against him. He further submitted that the petitioner is involved in three murders of innocent persons. He further canvassed that torn pieces of ransom note were deliberately left by the petitioner to give evidence to his story that he was also kidnapped along with the deceased persons. Learned counsel invited my attention to the material on record to support the prosecution story.

I have considered the submissions of the learned counsel for the parties. It is true that there is no eye witness to the murder of the three victims but the following material collected by the respondent during investigation reflects the role of the petitioner in the crime:-

The respondent relies on a diary allegedly written by the petitioner during the period 9th February 1996 to 2nd March 1996. The entries made therein speak of the attraction which the petitioner felt for Sujata Saha. A reading of the diary clearly shows that the infatuation was one sided and page after page of the diary manifests the dejection of the petitioner for his failure to receive response from her. It also shows that the petitioner was quite possessive about her as he did not like her smiling at others. The extent of possessiveness of the petitioner for Sujata Saha finds expression in the following writing of the petitioner:-
“If you not become mine I murdered you and same time I made to suicide myself.”
The diary was produced by the father of Sujata Saha and was seized by the prosecution vide seizure memo dated 18th June 1996. As per the opinion of the hand writing expert the diary is written in the handwriting of the petitioner. It was allegedly written by the petitioner during the time Sujata Saha had gone to South India on tour along with her parents. The obsession of the petitioner for Sujata Saha is evident from the fact that he along with his younger brother Anil Gupta and Arvind Malik, a Junior Engineer in the M.C.D., followed her to South India in his Toyota Car.

2. In April 1996 Sujata Saha along with a friend and her husband Ajay Nagpal, whose statements were recorded by the Investigating Agency under section 161 Cr.P.C., went to Shirdi for pilgrimage. Subhash Gupta sent accused Ravi Prakash and Dr. Hemant Kalra to Bombay by air. The duo from Bombay proceeded to Shirdi by car and stayed at Hotels Sharan and Guraia under assumed names. The hotel records were seized by the Investigating Agency.

3. The apathy of Sujata Saha towards the petitioner is apparent from the fact that the petitioner had presented air tickets to her and her family for undertaking the trip to the South India but the same were not utilised by her and on the contrary the tickets were torn to pieces which were recovered from her drawer during investigation.

4. From 2nd May 1996 to 4th May 1996, accused Ravi Prakash, Pinky, Shaily were staying in Mohan Hotel, Ashok Vihar Delhi. Thereafter they shifted to Centaur Hotel, Delhi, where they were joined by accused Deepak Das and witness Saurav Bhatt. As per the respondent the record of the cellular phone of the petitioner, which was seized, shows that during this period the petitioner was in touch with the above said accused persons. Statement of one Balbir Singh, contractor, was recorder under section 161 of the Cr.P.C. in which it has come that huge money was handed over by the petitioner to Shaily during this period. It has also been revealed during investigation that on May 1, 1996 the petitioner withdrew a sum of Rs. 5 lacs in cash from Oriental Bank of Commerce at Paharganj. Investigation shows that on 5/6th June 1996 accused Ravi Prakash, Shaily and Pinki stayed in Mohan Hotel, Ashok Vihar, New Delhi, for the second time. Here they were joined by accused Dr. Hemant Kalra, Vijay Mohan, Vibhur Singh @ Levy and Subhash Gupta on 6th June, 1996. During investigation statements of Anil Saluja, Manager, and Sandeep Rana, Cashier, Ganga Saran Shukla, Waiter, of Mohan Hotel were recorded. From their statements not only the factum of the above said accused persons having stayed in the hotel is borne out but it also transpires from the statement of Ganga Saran that when ever he used to visit their room they would talk in hush-hush tones. He also heard Rave Prakash telling the other accused that Subhash Gupta is a special person for him and his work must be done today. The Investigating Agency also recorded the statement of one Vikram Singh who stated that the petitioner was the owner of first floor of S-254. Greater Kailash Part I and was residing there with his family. He then shifted to S-102, Greater Kailash Part I. This flat was subsequently sold by Subhash Gupta but before the sale a boy whose description has been given by him stayed in his flat. According to Ashok Maniktala, whose statement was recorded under section 161 Cr.P.C., the boy was 6′ 3″ and on the information given by the petitioner was studying for his I.A.S. He also stated that on enquiry he came to know that the boy was related to some officer in the M.C.D. The prosecution claims that reference in the above statements is obviously to Ravi Prakash. Maniktala has also stated that he will be able to recognise the person who was staying in the house of the petitioner.

5. Statement of one Gyan Bir, who was employed as Beldar by the petitioner, was recorded by the Investigating Agency during investigation. He is the witness to the arrival of accused Ravi and Shaily in the office of Subhash Gupta in the evening of 6th June 1996. Gyan Bir, in his statement under section 161 if Cr.P.C., alluded to the fact that on the evening of 6th June 1996 he was asked by the petitioner to bring sweets from the shop of Haldiram located at Badarpur even though he had suggested to the petitioner that he could get the sweets from nereby Chawla Sweets. As per the suggestion of the prosocution, Gyan Bir was sent to the far off shop of Haldiram so that he does not see as to what was taking place at the petitioner’s office between the accused on the one hand and Dr. Kaul, Sujata Saha and Deepa Gupta on the other. Mithlesh, who was employed as Chowkidar by Subhash Gupta, is a witness to the arrival of Shaily, Ravi Prakash, Dr. Hemant Kalra, Vijay Mohan, Vibhor Singh and Kamal Kumar to the office of Subhash Gupta on the evening of 6th June 1996. Besides, he is also stated to have seen the arrival of Dr. Kaul, Sujata Saha and Deepa Gupta to the office of Subhash Gupta. Even mithlesh was sent to Lajpat Nagar to get apples and packets of fruit juice. When he returned he was again sent to run another errand. This time he was asked to get bottles of Bisleri. On his return he found the office to be empty. Mithlesh also speaks about the fact that earlier Subhash Gupta had given him instructions not to let Gyan Bir enter his office after he brings sweets from Haldiram. According to him he acted on the instructions of Subhash Gupta and took the sweets from Gyan Bir had brought the sweets and left the office for his house, Mithlesh was sent to Lajpat Nagar. The respondent suggests that the conduct of Subhash Gupta a shows that he did not want his chowkidar and Beldar to be witnesses to what was taking place in his office between the accused persons and the deceased. One Madan Lal, Kabari, who was passing by the office of Subhash Gupta and another person. He stated that the two ladies were made to sit in a grey coloured car. He also saw that similarly another person was brought out from the office of Subhash Gupta with the help and assistance of two persons and was made to sit in the back seat of a white coloured Maruti car. He also refers to the fact that the cars left on after the other. As per him the grey car was being driven by Subhash Gupta.

6. A strong submission was made on behalf of the respondent that the theory that Subhash Gupta was also kidnaped with Dr. Kaul, Sujata Saha and Deepa Sharma as advanced by the learned counsel for the petitioner during arguments is totally discounted by the statement of Madan Lal. Ashiwini Saini is the person in whose house at Agra the accused Subhash Gupta, Kamal Kumar, Vibhor Singh and Dr. Hemant Kalra and the two ladies arrived on the morning of 7th June 1996. According to Ashwini Saini, he is known to Ravi Prakash who had told him that he was a sales tax inspector in Delhi. On arrival, Ravi Prakash Introduced Subhash Gupta at his officer to Saini and one of the ladies who was in jeans as the wife of Subhash Gupta: Saini was told that one of their cars had broken down and that they would rest in his house by the time their car was repaired. As per Saini, he left his house for his work and told Ravi Prakash that in case he was not back by the time they left, the key of the house should be given to the neighbour. Saini is stated to have returned at 7.30 in the evening and found that Ravi Prakash and his associates were ready to leave. He, however, did not find the two ladies and enquired about them. He was told by Ravi Prakash that they had already left in the other car and that the accused would be meeting them at the petrol pump. Saini also stated that after a few days he read about the murder of the two ladies and also saw their photographs in a newspaper. He also read the news relating to the murder of Dr. Kaul. In order to find out the details he is stated to have gone to Baroda and met accused Deepak Das, who was known to him and also to Ravi Prakash. Deepak Das gave the address of Ravi Prakash, Kamal Kumar and two other associates who were staying in Hotel Sweet Dream. Saini refers to the fact that Ravi Prakash on seeing him felt ashamed for having betrayed his confidence and stated that he had murdered the two ladies at the behest of the petitioner.

7. Blood stains were found in the BMW car of the petitioner and as per the opinion of the expert of the C.F.S.L. Bombay, the mats of the car were stained with human blood. Some fibres were also found from the boot of the car and as per the report of the C.F.S.L. the fibres were from the same bad sheet in which Sujata Saha’s body was wrapped. Saini in his statement confirmed that after the accused left he found one bed sheet to be missing. The torn pieces of the bed sheet in which Sujata Saha’s body was found was identified by Saini as the one found missing from his house.

8. As Per the prosecution, another clinching factor which proves the complicity of the petitioner in the crime is that he had employed one Vikram Singh, Managing Director of a detective agency, to tail Sujata Saha. Vikram Singh in his statement has pointed out that the petitioner had specifically told him on 5th June 1996 as she was to remain in her office till 6 P.M. on that day and was to meet him thereafter. Learned counsel for the respondent made a strong plea that calling off the surveillance for 6th June 1996 when the deceased were kidnapped is crucial. In case the surveillance was not called of it would have been difficult to implement the plan.

Having regard to the above material, ex facie the petitioner cannot claim that he along with the deceased was kidnapped by the other accused persons and was not privy to the crime.

Learned counsel for the petitioner submitted that the petitioner is suffering from depression and other ailments and he should be released on interim bail. If the petitioner is suffering from depression and some other ailments it will be for the jail authorities to give him treatment in the jail hospital or any other hospital.

The considerations for the grant or refusal of bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice, of repeating the offence; likelihood of tampering with the witnesses, and the other relevant grounds. Besides, while granting or refusing the bail the public interest and the likely affect on the victim’s family must also be taken into consideration. The question which also must be consider, while exercising the discretion under section 493 of the Code of Criminal Procedure is whether in the event of grant of bail the public confidence in the administration of justice will go up or will be eroded. The answer to the question is again linked to the nature and character of the offence.

Having regard to the totality of the circumstances and keeping in view the above said well known considerations for the exercise of discretion under section 439 of the Code of Criminal Procedure, I do not consider it to be a fit case for grant of bail to the petitioner at this stage. Accordingly, the application is dismissed.

It is clarified that the above observations will not be construed as an expression of opinion on the merits of the case.

Copies of this order be given DASTI to learned counsel for the parties.