Shankar Bhatia vs State Nct of Delhi

Crl.M. (Bail) No.202/2017

We have heard Mr. Sumeet Verma, learned counsel for the appellant-Shankar Bhatia and Ms. Richa Kapoor, Additional Standing Counsel for the State. Mr. Ashwin Vaish, learned counsel for the complainant is present who has also addressed submissions before us on this application for suspension of sentence.

Mr. Sumeet Verma has submitted that the case of the prosecution rests on circumstantial evidence alone with regard to murder of a captain of a ship on the high seas off the coast of Brazil en-route from Argentina to Egypt via Spain. It is the submission of Mr. Verma that the prosecution has failed to establish an unbroken chain of circumstances pointing to only the conclusion of guilt of his client for commission of the offence of murder. It is contended that there is no evidence at all of any motive nursed by the appellant for commission of the crime and that, on the contrary, it is the case of the prosecution itself that the deceased captain was assisting Shankar Bhatia, the appellant who is only a cadet on board the ship. Learned counsel would contend that there is no evidence at all of the deceased having been last seen alive in the company of the appellant-Shankar Bhatia. It is urged that there is actually no evidence at all to establish the presence of the appellant-Shankar Bhatia anywhere at the scene of the crime.

Learned counsel would contend that the trial judge has summed up the circumstances which have been erroneously held in para 118 of the impugned judgment dated 6th September, 2013 as establishing the guilt of the appellant. As circumstance no.4, the trial judge has held that the prosecution has established an injury on the hand of the appellant and sought to connect it with the offence as an injury suffered at the time of the occurrence. Mr. Sumeet Verma, Id. counsel would suggest that after the alleged offence on 4th April, 2004, the ship was turned back to the Spanish waters and the Spanish Police had conducted detailed investigation into the matter. The appellant was subjected to a thorough physical examination and his body photographed by the Spanish Police on 15th April, 2004 when no injury was found by the Spanish police on his body. Our attention is drawn to the testimony of one Bimal Kumar Singh (PW4), the main witness on behalf of the prosecution who categorically confirms that Shankar Bhatia had no injury on his body on 4th April, 2004. Mr. Verma would contend that the Id. trial judge has therefore, erroneously relied on an injury on the appellant''s hand which was noticed after about 25 days when the appellant had reached Delhi. There is nothing to connect this injury to the date of the offence.

It is further submitted by Mr. Verma that as circumstance no. 13, the trial court has held evidence of the appellant''s towel being in possession of the co-convict Vivek Madhok as a piece of inculpatory evidence. It is submitted that this conclusion is erroneous in as much as there is evidence of Prem Nath Pavitran (PW23) who has stated that there was no restriction on several cadets exchanging towels between them. It is argued that even otherwise possession of the appellant''s towel with the other co-convict would by itself not be sufficient to find the appellant''s guilty of commission of the offence of murder. Mr. Verma would further point out that even the recovery of the towel is shrouded in doubt as the offence was alleged to have been committed on 4th April, 2004 while the recovery of the towel from Vivek Madhok has been effected only on 6th April, 2004.

The last circumstance which has been held by the trial judge has been noticed as circumstance no. 14. Mr. Sumeet Verma has argued that this summing up by the trial judge is based on pure conjectures. It is submitted that blood discovered in the cabin of the deceased captain was subjected to DNA comparison with the family members of the deceased as well as with the blood samples of the appellant Shankar Bhatia as well as those of the co-convict Vivek Madhok. From the DNA reports obtained by the Spanish Police as well as the Delhi Police, it is pointed out that the DNA profiling shows that the blood samples did not match any sample obtained from the appellant. The submission is that, therefore, there is nothing at all to even remotely suggest that the appellant was even present in the cabin when the offence was committed. It is urged that in these circumstances, the prosecution has failed to establish an unbroken chain of circumstances which points only to the guilt of the appellant. Mr. Verma would contend that the appellant has a good and arguable case on the merits of the appeal.

It is contended by Mr. Verma that a previous application seeking interim suspension of sentence of the appellant-Shankar Bhatia was considered along with an application for suspension of sentence tiled by the co-convict Vivek Madhok and was rejected by the order dated 20th December, 2013. However, the foregoing circumstances have not been considered in the said order.

Mr. Verma has also drawn our attention to the nominal roll of the appellant which shows that as on 22nd February, 2017, the appellant has already undergone over 5 years and 10 months of incarceration without having his appeal heard. It is contended that as on 20th December, 2013, the appellant had undergone little over one year incarceration. Learned counsel would contend that there is little possibility of this court hearing the appeal expeditiously and that these circumstances justify grant of the prayer herein contained.

Learned counsel would also point out that it was in view of this submission that the appeal itself was set down for hearing by the previous Benches on two occasions. However, unfortunately hearing could not be concluded.

Ms. Richa Kapoor, learned Additional Standing Counsel has vehemently opposed grant of interim suspension of sentence submitting that the prosecution has proved the circumstances beyond any reasonable doubt and that the appeal itself deserves to be rejected.

After consideration of the submissions made by all the parties present, we are of the view that it cannot be denied that the appellant-Shankar Bhatia has made out an arguable case in appeal and a case for grant of suspension of sentence.

In view of the above, we direct as follows :

(i) Subject to the appellant-Shankar Bhatia furnishing a personal bond in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the Id. trial court, the sentence imposed upon the appellant-Shankar Bhatia shall remain suspended during the pendency of the appeal.

(ii) Prior to his release, the appellant-Shankar Bhatia shall furnish the address as well as the mobile phone number which he would be using during the pendency of the appeal and the phone number of a close relative to the Id. trial court as well as the SHO of Police Station, Sector-7, Rohini. In case of any change in either his telephone number or address, the appellant-Shankar Bhatia shall keep the trial court and SHO of Police Station, Sector-7, Rohini informed of the same.

(iii) During the pendency of the appeal, the appellant-Shankar Bhatia shall record his presence at any time in the day light hours of the second or fourth Saturday of the month of March and September of every year with the SHO of P.S., Sector-7, Rohini commencing from 11th March, 2017.

The application is allowed in the above terms.

Dasti.