Harish Chandra @ Pintu And Another vs State Of U.P.
2018 Latest Caselaw 3941 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 1510 of 2014
 

 
Appellant :- Harish Chandra @ Pintu And Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- K.C. Kishan Srivastava, Raj Kumar Mishra, Rajjan Singh Yadav, Swati Agrawal
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

Hon'ble Ajit Singh,J.

(Ref : Criminal Misc. Bail Application No.135970 of 2014)

Case has been called out. Mrs. Swati Agrawal, counsel appearing for the appellant no.2-Subhash alias Dabbu and Shri Ram Pravesh Yadav, counsel representing the appellant no.1 Harish Chandra alias Pintu are present along with learned A.G.A.

Shri Ram Pravesh Yadav counsel for appellant No.1 Harish Chandra alias Pintu seeks adjournment.

This is a bail application moved on behalf of both the appellants in appeal seeking their release on bail who have been convicted and sentenced in Sessions Trial No.336 of 2011 (State vs. Harish Chandra alias Pintu and another) arising out of Case Crime No.163 of 2011, u/s 302/34, 364, 201 I.P.C., Police Station-Sikrara, District-Jaunpur. But Mrs. Swati Agrawal learned counsel submits that she is representing only applicant no.2 Subhash and is not representing another appellant Harish Chandra and, therefore the bail application with regard to appellant no.2 Subhash may be heard and considered today itself instead of proroguing the same for the reason of adjournment sought on behalf of co-accused Harish Chandra.

On the insistent request of counsel, this Court deems it fit to proceed to hear on point of bail with regard to accused-Subhash. The bail matter with regard to appellant no.1-Harish Chandra shall be heard in the next cause list.

Heard Mrs. Swati Agrawal, learned counsel for appellant no.2 Subhash and learned A.G.A. who has opposed the prayer for bail.

Submission of the counsel for appellant Subhash is that there are some contradictions on the point of timing as to when the mother of the deceased inquired about her missing son and as to when she was informed about his deceased son having been seen by the witnesses being carried by the accused persons. Further submission is that nothing incriminating has been recovered at the instance of the appellant and therefore his case stands distinguishable from the co-accused at whose instance the dead body is said to have been recovered. Submission is that the time of incidence of kidnapping is not sufficiently or convincingly proved and there appears some confusion in evidence about the same which creates the doubt upon credibility of the prosecution story. It has been further submitted that the witnesses have been examined by the Investigating Officer at a belated stage which adversely affects the credibility of the evidence. It was also pointed out that the doctor has not noted the presence of mud or water upon the dead body which may go to belie the recovery of the dead body from the well. It has also been submitted that the appellant is not having any criminal history and for all these reasons, therefore, he may be released.

Perused the record in the light of rival submissions made at the bar. As per the evidence available on record this case relates to an egregiously foul murder of a seven years old child Priyanshu @ Adarsh. On the day of occurrence the deceased, who was a child of tender age, was going along with two other children companions back to their school. At that time the accused-appellant Subhash and co-accused Harish Chandra who are real brothers and who are said to have had inimical relationship with the family of the deceased, came over there. Child Vikash Mishra, one of the companions of the deceased and who at that time was going along with him back to the school, has been produced on behalf of prosecution in the court as P.W.-3. He has deposed in the Court to the effect that after coming over there the aforesaid two accused persons firstly gave some money to the children to eat sweets in order to allure them. It further transpires that having been successfully bluffed with the tempting allurement, two of them proceeded to purchase the sweets while in the meantime both the accused persons picked up the deceased Priyanshu @ Adarsh and then whisked him away on the bicycle from there. P.W.-3 Vikas Mishra has also unmistakingly identified the accused-appellant and the co-accused in the court as being the persons who had kidnapped Priyanshu. While on the way onwards, both the accused persons were seen carrying the kidnapped child on their cycle by certain other persons also who too have been examined as witnesses. Ashok Kumar Dubey and Jai Prakash Mishra are the witnesses produced by the prosecution in the court as P.W.-2 and P.W.-4 to prove the fact of the deceased having been carried by the two accused persons on the bicycle after kidnapping him. The child Priyanshu @ Adarsh thereafter never returned home and was never seen alive. It is only his dead body packed in a bag that could be found later on. As was natural, the inquiries were made to trace his whereabouts and in that process of search the aforedescribed information regarding his kidnapping was gathered. On the basis of the information which the mother of the deceased child had thus garnered regarding her son's kidnapping, she went to the Police and got the F.I.R. lodged. The names of the important witnesses, who have deposed in the court about the crucially relevant and incriminating facts, find their place in the F.I.R. itself. We find P.W.-2 Ashok Kumar Dubey, P.W.-3 Vikas Mishra and P.W.-4 Jai Prakash Mishra duly mentioned as witnesses in the F.I.R. In fact the substance of the incriminating version proved on behalf of the prosecution finds its expression substantially at the earliest stage. The appellant Subhash and co-accused Harish Chandra both were nominated as accused in the F.I.R. itself. Consequential investigation ensued and the accused were duly apprehended. When police probed, inquired and examined them, the accused spilled the beans and the details as to how deceased was kidnapped, how he was murdered and then how his dead body was got disposed were all divulged. We find that at the instance of co-accused Harish Chandra the dead body of the deceased was discovered in a well where it had been thrown in a packed tied up plastic sack which also contained with it some bricks which obviously seem to have been put there in order to add to its weight. The postmortem report revealed fracture of the hyoid bone and the fracture of the lower jaw and the death was found homicidal having been caused as a result of strangulation of the child. The act of kidnapping was a joint criminal venture perpetrated by both the accused. No very convincing or tenable explanation has been proffered on behalf of either of the accused as to what happened to the kidnapped child after he was picked up and carried away by them. The circumstances which followed after the deceased was kidnapped, were best known to the accused themselves. The irresistible inference that flows from the circumstances duly proved by the prosecution is the guilt of the accused persons, one of whom is appellant Subhash. So far as the peripheral discrepancy regarding the timing as has been pointed out by the counsel is concerned, these are the matters which can be appreciated only at the time of final hearing. The belated examination of the witnesses again is an aspect which reflects more on the negligent conduct of the Investigating Officer than upon the credibility of the witnesses whose names find their place duly mentioned in the first version of the occurrence itself i.e. in the F.I.R. This is certainly not a case where the witnesses may be dubbed as lately introduced witnesses at all. So far as the contention of the appellant's counsel that the doctor had not noted the presence of mud on the body is concerned, the contention does not appear to contain much worth. The evidence produced sufficiently proves that in the process of disposing off the dead body of the child it was packed in a plastic bag which was then tied up on its mouth. This plastic bag containing the cadaver of the child was resurrected out from the well and then was opened up to find the inner contents which apart from the dead body included some bricks and a shirt of co-accused. The absence of mud on the dead body thus stands self explained in such circumstances and not much capital can be made out of it by the defence. In a crime of such gravity where the accused have not shown mercy even to a child of seven years and where the child of such a tender age could be so brutally killed and then his dead body being disposed in such cold blooded manner itself speaks about the depravity involved in the crime. The counsel simply has not been able to point out any such infirmity in the judgment on the basis of which the same may be castigated on any serious ground. It is a well reasoned judgment and the guilt of appellant has been held by the trial court after analyzing and appreciating the evidence in a reasonable manner. Due procedure of law has been followed and the accused-appellant is behind the bars having his guilt proved beyond all reasonable doubts. The appellant has not been able to establish even a prima facie case in his favour, and therefore, this Court does not see any good ground to release him on bail. The detention period alone in matters of such gravity cannot suffice to be a legitimate basis to release the appellant on bail on that ground alone. Moreover and much more so, when the Court is open to hear the final arguments. The lower court record is already available before us. If the appellant or his counsel has any inclination he can always take steps to get the hearing expedited and to get the appeal finally decided. The court has all the inclination to hear the same, if the counsel so desires. The reluctance towards final hearing of the appeal and confining only on the point of bail is often a contrivance to procrastinate the period of detention and then to make capital out of the same in the form of release on bail which does not sound a very healthy trend insidiously gaining ground at the bar these days.

At any rate looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the appellant has not made out a case for bail. Therefore, the prayer for bail of appellant No.2 Subhash alias Dabbu is rejected.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.

(Order on Appeal)

Office is required to prepare the paper-book and list this appeal thereafter for hearing.

Order Date :- 26.11.2018

Mini/M. Kumar