Dinesh Singh vs State Of U.P.
2011 Latest Caselaw 5044 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
RESERVED
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12992 of 2010
 

 
Petitioner :- Dinesh Singh
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- A.K.Dubey,R.K.Dubey
 
Respondent Counsel :- Govt Advocate,P.K.Bhardwaj
 

 
Hon'ble Ashok Srivastava,J.

This bail application has been moved on behalf of the applicant, Dinesh Singh, who is involved in Case Crime No. 467 of 2009, under Sections 302 and 376 I.P.C., Police Station Rampur, District Jaunpur.

The complainant of this case is one Shiv Kumar Pandey.

The alleged incident of rape and murder had taken place in the intervening night of the 15-16th of May, 2009. According to the F.I.R. the complainant is a resident of village Pachwal, P.S. Rampur, Jaunpur and his residence is situated at Jaunpur-Mirzapur road. On 15.5.2009 in the night, after taking their night meals, all the family members went to sleep. Some of them including the deceased girls were sleeping behind the house. At about 2.30 A.M. the complainant woke up and found that his two daughters namely Soni aged about 11 years and Akanksha aged about 8 years were not on their cots. An anxious father alongwith other family members went in search of the two girls. The girls could not be traced in the night. In the morning the dead bodies of both the girls were found lying in an agricultural plot near the river. An F.I.R. was lodged with the police on 16.5.2009 at about 7.30 A.M. After completing the formalities of inquest, the post-mortems were conducted and reports were prepared. The post-mortem reports indicated that the poor girls were raped and thereafter they were done to death by strangulation. During the course of investigation the names of the accused persons came to light. They were arrested and while they were in police custody they are said to have confessed to their crimes. The co-accused of this case is one Shiv Kumar Gupta. During the course of investigation it was discovered that the mother of Shiv Kumar Gupta had illicit relationship with the complainant i.e. father of the deceased girls. This had caused embarrassment, annoyance and irritation in the mind of Shiv Kumar Gupta. The applicant accused is said to be a close friend of Shiv Kumar Gupta. The prosecution story further goes to show that one Buddhu Chamar had heard the conspiracy which was hatched in the goomti in which the applicant was running a small shop in which he used to repair punctured and flattened cycle tyres. As per the prosecution case, Buddhu Chamar had heard on 14.5.2009 that both the accused persons were making plans to rape and kill the daughters of the complainant. Incidently Buddhu Chamar was present behind the abovementioned goomti and heard the entire planning but he did not disclose it to any one till 2.6.2009 when he was approached and examined by the I.O. of the case under Section 161 Cr.P.C. It should be mentioned here that an informer had informed the I.O. of the case that Buddhu Chamar had heard the abovementioned planning. The further story of the prosecution is that on the fateful night the witnesses Sanjay Pandey and Shailesh Kumar Pandey had seen both the accused persons when they were coming from the side of the river at about 12.00-100 in the night. It has come in the statement of Sanjay Pandey and Shailesh Kumar Padney that when they asked the two accused persons wherefrom they were coming, the two became nervous and told that they were coming back after easing themselves. It should also be mentioned here that Sanjay Pandey and Shailesh Kumar Pandey were also going to ease themselves at that odd hour of night. Another witness from the prosecution is one Sri Pati Pandey who is a witness of illicit relationship between the mother of co-accused Shiv Kumar Gupta and complainant Shiv Prasad Pandey. According to Sri Pati Pandey one day he had seen that the complainant had hugged from behind the mother of the co-accused Shiv Prasad Pandey when both were present near a handpipe. Sri Pati Pandey had also noticed that this incident of hugging was seen by the co-accused Shiv Kumar Gupta also. It has also come in the prosecution story that both the accused persons alongwith their parents had made extra judicial confessions before the witnesses Bhupesh Pandey, Phool Chandra, Mithai Lal Pandey and Surendra Singh. On the basis of these facts, as mentioned above, a chargesheet has been filed against both the accused persons.

Heard learned counsel for the applicant and learned A.G.A. and perused the materials on record.

It has been submitted from the side of the applicant that the applicant is in jail since 17.6.2009. It has further been submitted that he is a poor young person and he does not have any direct grievance against the complainant or his daughters. It has also been submitted that he is a poor man and earns his livelihood by running a puncture repair shop in a goomti. It has further been contended that there is no direct evidence against him in this case. The girls were not seen with the applicant at any point of time; that no recovery had taken place, of any incriminating article, at the instance of the applicant nor the dead bodies were recovered on his pointing out. It has also been contended that but for extra judicial confessions, there is nothing against the applicant and extra judicial confessions are very weak type of evidence. It has further been submitted that the witness Buddhu Chamar has filed an affidavit before the trial court wherein he has said that he had stated nothing before the I.O. nor he has been ever examined by him. In the above set of circumstances, the bail has been pressed.

The bail application has been vehemently opposed by learned A.G.A.

In 2009(1) JT 532 (Bhuwanesh Yadav Vs. State of Bihar and others) the Apex Court has said in paragraph 9 that "there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances the following factors also before granting bail, they are :

1.The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

2.Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

3.Prima facie satisfaction of the court in support of the charge."

In the above case law the Apex Court has emphasized that while disposing of the bail application, the nature of supporting evidence and prima facie satisfaction of the court in support of the charge should be considered. In the instant case there is no direct evidence against the applicant. No one has seen the girls alongwith the applicant at any point of time. Neither the dead bodies of the girls nor any other incriminating article has been recovered at the instance of the accused persons. The evidence available on the records against the applicant are as follows :

i.The applicant was seen alongwith the co-accused in the night by two witnesses of this case namely Sanjay Pandey and Shailesh Kumar Pandey when they were coming from the side of the river and on inquiry the accused persons had become nervous and told them that they were coming back after easing themselves. It should also be mentioned that both the witnesses Sanjay Pandey and Shailesh Kumar Pandey were also going towards the same spot to ease themselves.

ii.Extra judicial confessions of the applicant and co-accused and their parents before four persons namely Bhupesh Pandey, Phool Chandra, Mithai Lal Pandey and Surendra Singh. It is a matter of common experience and prudence that an extra judicial confession in such type of cases are highly improbable. It is against the human nature that one will go to various persons of the village just to seek their help that the accused should be helped as they have committed some heinous crime. In the instant case there is nothing on record which may show that the four witnesses named above are so influential that they can influence the I.O. and other higher officials of the police department.

iii.The evidence of Sri Pati Pandey who is a witness of illicit relationship between the mother of the co-accused Shiv Kumar Gupta and the complainant. From perusal of his statement, it appears that the entire story of such hugging and the hugging being seen by the co-accused Shiv Prasad Gupta are apparently unbelievable.

iv.The statement of Buddhu Chamar also does not appear to be probable as he was just a chance witness who listened the hatching of the conspiracy between the two and his presence behind the goomti was just a matter of chance.

In the instant case the I.O. had worked out the entire case in one single day i.e. on 2.6.2009 on which date he has recorded the statements of all the witnesses concerned. Prior to that he was groping in the dark.

In the instant case, at present, no convincing evidence is there against the applicant.

I have considered with caution the entire case diary more than once and after pondering upon each and every issue related to the alleged crime I am of the view that the kind of evidence available on the record against the applicant is very weak.

The applicant is a poor young man who earns his livelihood by repairing punctures of cycle tubes. He is in jail since more than two years.

Considering all the aspects of the case but without expressing any opinion as to the merits of the case, I am of the view that the applicant should be released on bail.

Let the applicant, Dinesh Singh, who is involved in Case Crime No. 467 of 2009, under Sections 302 and 376 I.P.C., Police Station Rampur, District Jaunpur be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.

The trial court is directed, while deciding the case, not to be influenced or consider any of the observations made by this court above because these observations have been made only with a view to pass a reasoned bail order and such observations have nothing to do with the merits of the trial.

Order Date :- 12.10.2011

S.B.