Hareram Tiwari vs State Of U.P.
2021 Latest Caselaw 1056 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 30
 
Case :- BAIL No. - 9168 of 2019
 
Applicant :- Hareram Tiwari
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Lalit Mohan Joshi,Vandana Sharma
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out.

Heard learned counsel Sri Lalit Mohan Joshi, Advocate for the accused-applicant and learned Additional Government Advocate Ms. Farhat Jamal Siddiqui on behalf of the State and perused the material available on record.

The present bail application has been filed on behalf of the accused-applicant-Hareram Tiwari, who is involved in Sessions Trial No. 1068 of 2016, Case Crime No. 0398 of 2016, under Sections 302, 201 IPC, Police Station Sarojini Nagar, District Lucknow.

The occasion of present bail application has arisen on rejection of the bail plea of accused-applicant by 10th Additional Sessions Judge, Lucknow vide order dated 03.01.2019.

According to the First Information Report, lodged by maternal uncle of the deceased-Pooja, the informant came to know on 14.08.2016 at about 7:30 p.m. that his niece (bhanji) was killed and buried in the ground by her husband Amarnath Tiwari and father-in-law Hareram Tiwari, the present accused applicant. After committing the offence, they fled away from the house alongwith three daughters of the deceased. Dead body of the deceased-Pooja was excavated and recovered by the police from the earth in the matrimonial house where it was buried. The Investigating Officer recovered the body of deceased alongwith the article of murder, the hammer, stained with blood. The post-mortem report opined the cause of death due to ante-mortem injuries which are lacerated wounds at the forehead of the deceased in a considerable numbers and sizes, referred hereunder:

"(i) Lacerated wound 2cm x1cm present on left side of forehead d1 cm as we left eye brow. (ii) Lacerated wound 3cm x 2cm x bone deep present on outerauged of left eye. (iii) Lacerated wound 2cm x0.5cm x nuisel deep present on upper lips of left side (iv) Contusion 12cm x8cm present on Rt. side face just in front of Rt. ear. (v) Contusion 9cm x 7cm present on left side head just above the left eaer lacerated wound 2cm x 1cm x bone deep presetn on cline on opening eccheynosis present underneath all the injury maintained above. all fascial bones fractured in to multiple pieces left temporal bone fractured subduedhumatued present all over the brain."

The inquest report was prepared by the Investigating Officer wherein the present accused-applicant is expected to be remained there alongwith his son, the co-accused 'Amarnath' but they were not present. Subsequently, on 16th of August, 2018, the co-accused-Amarnath absconded but the present accused-applicant was arrested on the information of reliable sources of the police and on his disclosure, the articles of digging and burring the body a spade (Fawada) was recovered from the place indicated by the accused. Investigating Officer has also recorded a confessional statement of the accused-applicant which is in the nature self-inculpatory involving his son Amarnath, the co-accused also.

Learned counsel further drew the attention towards the statements, recorded in the court, of PW-1 and PW-2 respectively the wife and daughter of the accused-applicant to press on the point that the present accused-applicant has separate living. The site map of the spot of incident, drawn by the Investigating Officer, though has not shown such separate living nor recorded about this fact.

Learned counsel further submits that the accused-applicant is detained in jail since more than 4 and half years, though there is no material evidence against him, as learned counsel contended towards the statement of PW-1, according to which, Amarnath, the co-accused was used to reside alongwith his wife and three daughters in the house in question where the incident happened. The applicant has nothing to do with the offence in question against the deceased. After investigation concluded, chargesheet has been submitted, whereupon charges were framed and trial begun. The evidence of PW-1 and PW-2 have already been recorded and so far as the public and formal witnesses are concerned, they can not be won over by the accused-applicant who is common and old man, having no criminal antecedent. As such, if the accused-applicant is released on bail, it would be helpful to enable him to make proper defence during the course of trial. He is a law abiding person and will ensure to abide the interest of the orders of the court to ensure his presence in the court.

Learned Additional Government Advocate for the State, on the other hand, submits that there is confessional statement, recorded by the Investigating Officer on 16.08.2018 when he was arrested, wherein the accused-applicant involved himself alongwith the co-accused Amarnath in committing the offence. He conferred incident of sudden altercation between the members of the family occasioned, accidentally in the rash the deceased-Pooja was attacked with the hammer by co-accused, resulting which she fell down unconsciously. Fearing as to her death, she was further beaten from hammer and when she was done to death, her body was buried in the house and, thereafter, the accused-applicant fled away from the place of incident.

Learned AGA further argued that the argument of learned counsel for the bail-applicant with regard to separate living from the co-accused Amarnath is baseless, as during investigation when the statement was recorded under Section 161 Cr.P.C., PW-1, wife of the accused-applicant, stated about separate living of her only, while the living of her husband, the present accused-applicant alongwith co-accused Amarnath in the house in question where the incident occurred. According to her, the PW-1 has been won over by the applicant, otherwise the entire family used to reside in the house in question where the incident occurred.

Learned counsel for the bail-applicant, in rebuttal, has submitted that the confessional statement has no relevance to be considered while deciding the bail application, which is a matter of trial. So far as the evidence as to the committing the offence is concerned, there is no direct evidence against the accused-applicant. The accused-applicant is not expected to live in the matrimonial house of the co-accused-Amarnath and he reasonably expected to live with his wife and daughter in the house stated by him and it was found, prima facie, established during the investigation. Learned counsel for the bail-applicant further submitted that in the absence of any direct evidence, only presumption of culpability raised, cannot raised against the present accused-applicant because the house in question where the incident occurred is not the matrimonial house of the present accused-applicant. The circumstantial evidence is also not against the accused.

On hearing the learned counsel for the parties, looking into the facts and circumstances involved in the case and particularly when the case is based on the circumstantial evidence and there is no direct evidence against the present accused-applicant, nor prima facie, the house in question was in use or possession and custody of the accused-applicant where the incident occurred, I find force in the submission of learned counsel for the bail-applicant.

The co-accused-Amarnath is also in jail, his case is distinguishable alongwith that of the present accused-applicant as the incident occurred in his matrimonial house where he was living alongwith the deceased on the date and time of the incident and thereafter from his absconding from the spot.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Ors. reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Without commenting any opinion on the merits of the case with regard to the innocence and complicity of the accused-applicant in the offence in question, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

Let applicant-Hareram Tiwari be released on bail in Sessions Trial No. 1068 of 2016, Case Crime No. 0398 of 2016, under Sections 302, 201 IPC, Police Station Sarojini Nagar, District Lucknow, on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :-19.1.2021

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