Devendra Kumar Dwivedi @ Rinku ... vs State Of U.P
2021 Latest Caselaw 938 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 07.01.2021
 
Delivered on 18.01.2021
 
Case :- BAIL No. - 5323 of 2018
 

 
Applicant :- Devendra Kumar Dwivedi @ Rinku Dwivedi
 
Opposite Party :- State Of U.P
 
Counsel for Applicant :- Arun Sinha,Amrit Kumar Tiwari, Ashish Raman Mishra, Rajendra Prasad Mishra, Siddhartha Sinha
 
Counsel for Opposite Party :- G.A,Sushil Prakash Pandey
 

 
Hon'ble Rajesh Singh Chauhan,J.

1. Heard Sri R.P. Mishra, learned counsel for the applicant, learned Additional Government Advocate for the State and perused the record.

2. Sri R.P. Mishra, learned counsel for the applicant has contended that the present applicant (Devendra Kumar Dwivedi @ Rinku Dwivedi) is in jail since 07.09.2017 in Case Crime No.184 of 2016, under Section 302 I.P.C., Police Station-Goshaiganj, District-Lucknow.

3. He has further contended that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the First Information Report. On account of the prosecution story, so narrated in the First Information Report, the complainant-Ram Ujagar Dwivedi and his wife had gone to village-Sekhawa Mau on 23.04.2016 to attend one family marriage and when they returned home at night they found that son of the complainant aged about 10 years namely Satyam Dwivedi is not present in the house. Upon inquiry, the daughter of the complainant, namely, Mandakini informed that Rinku Dwivedi (present applicant), Dheeraj Dwivedi and Lavkesh Dwivedi had called the son of the complainant to pick the mangoes and since then the son of the complainant had not returned home. The First Information Report further says that on 24.04.2016, at about 7:00 A.M., the complainant found the dead body of his son outside the village and the shirt of his son was wrapped around his neck.

4. Learned counsel for the applicant has submitted that during investigation the police has recorded the statement of one Chandini, who happens to be the Aunt of the deceased, Mandakini (sister of the deceased), Shivam (brother of the deceased), Smt. Archana Dwivedi (mother of the deceased) and one Annu Dwivedi. Those statements have been annexed with the bail application.

5. Learned counsel for the applicant has submitted that the aforesaid statements are false so far as the allegation of the offence has been levelled inasmuch as no one has seen the incidence in question. As a matter of fact, there is no eye witness of the incidence in question. He has also submitted that the perusal of the statement of the mother of the deceased reveals that the relation of the family members of the complainant with the present applicant and his family were inimical. One of the co-accused, namely, Lavkesh Dwivedi had allegedly committed rape with the minor daughter of the family of the complainant. Therefore, it has been submitted that if the relation of the complainant with the present applicant were inimical, why did the complainant not try to find out the location of his son in the night itself when he came to know, after returning from marriage function, that his son had gone with the accused persons. Even as per the statement of the mother of the deceased her husband had tried to find out his son in the morning at about 4:30 A.M. and no explanation of this delay has been given in any of the statements. Therefore, the story appears to be highly improbable for the reason that if his son had gone with those accused persons in the mid night of 23.04.2016, who were having inimical relation with the family members of the complainant, as to why the complainant did not find out the location of his son in the night itself.

6. Learned counsel for the applicant has also submitted that the post-mortem report of the deceased is not supporting the prosecution story inasmuch as the dead body of the deceased was found in the morning of 24.04.2016 and the deceased is said to have gone away around 12:00 A.M. (Mid Night of 23.04.2016). The post-mortem of the deceased was conducted at about 12:50 P.M. on 24.04.2016. The post-mortem report suggests that the death of the deceased had taken place about one day ago, that means the time of death as per the post-mortem report should be at about 12:50 P.M. on 23.04.2016. Sri Mishra has again reiterated that there is no eye witness of the incidence and in the name of evidence, the deceased was allegedly last seen with the accused person.

7. The reliance has been placed upon the dictum of Hon'ble Supreme Court in re: Nizam and another vs. State of Rajasthan (Criminal Appeal No.413 of 2007), wherein the Hon'ble Apex Court vide judgment and order dated 04.09.2015 has observed in para-18 as under:-

"18. In view of the time gap between Manoj left in the truck and the recovery of the body and also the place and circumstances in which the body was recovered, possibility of others intervening cannot be ruled out. In the absence of definite evidence that appellants and deceased were last seen together and when the time gap is long, it would be dangerous to come to the conclusion that the appellants are responsible for the murder of Manoj and are guilty of committing murder of Manoj. Where time gap is long it would be unsafe to base the conviction on the "last seen theory", it is safer to look for corroboration from other circumstances and evidence adduced by the prosecution. From the facts and evidence, we find no other corroborative piece of evidence corroborating the last seen theory."

[emphasis supplied]

8. On the strength of the dictum of Hon'ble Apex Court in re: Nizam (supra), it has been submitted that the Hon'ble Apex Court has held that where time gap is long it would be unsafe to base the conviction on the "last seen theory". As per the Hon'ble Apex Court, it would be safer to look for corroboration from other circumstances and evidences adduced by the prosecution. Further, for establishing the guilt on the basis of the circumstantial evidence, the circumstances must be firmly established and the chain of circumstances must be completed from the facts.

9. Learned counsel for the applicant has therefore submitted that since there is lacuna in the prosecution story, so in the present case the last seen theory of the prosecution should not be believed as chain of circumstances are not complete.

10. Sri Mishra has submitted that this Court has granted bail to the co-accused, Lavkesh Dwivedi, on 20.10.2018, however that bail has been cancelled by this Court on 11.01.219 and against that order the special leave petition has been filed before the Hon'ble Supreme Court where the special leave petition is pending and order of cancelling the bail has been stayed.

11. Learned counsel for the applicant has also submitted that more than 3 years and 4 months period have passed since the present applicant is in jail and the trial in question is being cooperated on his side and if the present applicant is released on bail, he shall cooperate with the trial proceedings and shall not hamper such proceedings. He has also submitted that the present applicant shall not misuse the liberty of bail and shall abide by the terms and conditions of the bail order, so imposed.

12. On the other hand, learned Additional Government Advocate for the State has opposed the prayer for bail by submitting that the present applicant has committed heinous offence murdering a child of tender age. He has also submitted that the habit of the present applicant is of criminal nature, therefore, he should not be released on bail. However, he could not dispute the contentions so raised by the learned counsel for the applicant. This Court has also granted bail to the co-accused, Dheeraj Dwivedi, which is listed with this bail application.

13. Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail in this case.  However, it is expected from the learned trial court to conclude the trial with expedition by taking recourse of Section 309 Cr.P.C., if it is so needed. No unnecessary adjournments shall be given to any of the parties.

14. Let the applicant, Devendra Kumar Dwivedi @ Rinku Dwivedi, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following 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.

[Rajesh Singh Chauhan,J.]

Order Date :- 18.01.2021

Suresh/