Ankit Kumar Yadav vs State Of U.P.
2023 Latest Caselaw 11457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved :- 07/04/2023
 
Delivered :- 18/04/2023
 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
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Court No. 76
 
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CRIMINAL MISC. BAIL APPLICATION No. - 51332 of 2022
 
Applicant :-  Ankit Kumar Yadav
 
Through :- Dr. S.B. Singh, Advocate 
 
vs. 
 
Opposite Party :- State of U.P.
 
Through :- Sri Sunil Srivastava, A.G.A.
 
CORAM :- HON'BLE SAURABH SHYAM SHAMSHERY, J.

1. This is second bail application filed on behalf of applicant who is facing trial in Case Crime No. 36 of 2022 under Sections 302, 201 I.P.C., Police Station- Chilh, District- Mirzapur.

2. The first bail application of applicant was rejected by this Court on 14.09.2022 by a reasoned order. In the order, it was taken note that co-accused Radhey Shyam Yadav was granted bail by an order dated 08.07.2022. For reference, reasons given therein are mentioned hereinafter :-

"I have given thoughtful consideration to the contentions raised by learned counsel for the parties. At the very outset, it is clarified that the role played by the accused-applicant is distinct from co-accused Radhe Shyam. From the possession of the accused-applicant, the mobile phone of the deceased was recovered and on his alleged disclosure statement a hammer from dickey of his motorcycle was also recovered. The accused has disclosed that by playing deceitful means he took the accused at lonely place near old railway track on the promise that he will provide him drink and a girl will also come there. The blood was also found on the lower part of the hammer. On his disclosure, the bloodstained water bottle was also recovered.

Keeping in view the facts and circumstances of the case and the evidence available on record as well as severity of punishment and the manner in which murder of Sunil Yadav close relative as alleged was committed by accused,

I do not find it fit for bail. Accordingly, the bail application of the applicant is rejected."

3. Present bail application was filed on 03.11.2022 i.e. within less than 2 months after the first bail application was rejected.

4. In the application, averments are mostly on merit of the case and only subsequent event is that the applicant is in jail since 03.03.2022, however, till date even charges are not framed.

5. On direction of this Court, the Trial Court has submitted a status report that the case was referred to Additional Sessions Judge on 04.06.2022. Applicant and co-accused have filed applications for discharge which were dismissed on 02.03.2023 and thereafter charges were framed under Sections 302/34 and 201 I.P.C. on same day.

6. Applicant has not disclosed that he has filed an application for discharge, therefore, the Trial Court could not be blamed for that no charge was framed. This is a suppression of a material fact.

7. It transpires from above referred facts that after the first bail application was rejected on 14.09.2022 and till the second bail application was filed on 03.11.2022, the trial could not proceed due to discharge applications filed by applicant and co-accused, therefore, there is no subsequent event to consider this bail application.

8. Dr. S.B. Singh, learned counsel for applicant has argued on merit that first bail application was rejected that many incriminating materials were recovered on pointing out of applicant, whereas co-accused was granted bail. Recovery was false and planted. Learned counsel has placed reliance upon a judgment passed by Supreme Court in Ramanand alias Nandlal Bharti vs. State of Uttar Pradesh, 2022 SCC OnLine SC 1396 and particularly its paragraph 53, that recovery panchnama in present case was deficient in all the relevant objects described in said paragraph. Paragraph 53 of said judgment is quoted hereinafter :-

"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."

9. Learned counsel has submitted that aforesaid judgment is a subsequent event and if the recovery memo is tested with aforesaid law of preparation of a memo of recovery, the memo of present case shall have no legal bearing.

10. Sri Sunil Srivastava, learned A.G.A. for State submitted that since first bail application was dismissed on merit, therefore, consideration of a judgment would be akin to review the order which is not permissible and for that applicant has to challenge the order before Supreme Court and since there is no subsequent event for consideration, therefore, this second bail application may be rejected.

11. Learned counsel for applicant has raised a point of law, therefore, I have carefully perused the arrest and recovery memo, a part of record.

12. According to arrest memo/recovery, the applicant and co-accused were intercepted on a road and were arrested on spot. Both accused persons have narrated manner of crime and a hammer and phones were recovered from their motorcycle and on personal search, therefore, in present case the procedure that statement of accused be recorded in presence of two witnesses at police station that they wanted to show the incriminating material does not require. They are not taken to police station.

13. The memo has disclosed the informant Arvind Yadav and uncle of deceased Vijay Kumar also reached at the place of arrest as well as on the spot of arrest the accused have stated that they can point out other incriminating items and the police party along with witnesses and accused persons went the place and incriminating items were recovered on their pointing out. The names of independent witness as mentioned in memo are Skand Verma and Avesh Yadav, therefore, even the relevant aspects mentioned in paragraph 53 of Ramanand (supra) are prima facie satisfied.

14. The Supreme Court in Ramanand (supra) has considered the testimony of I.O. therein as well as of punch witnesses and only thereafter held that recovery memo was not proved and proceeded to consider other aspects of said case also. However, in the present case, testimony of I.O. and witnesses of panch are still to be led before Trial Court, therefore, at this stage, it cannot be held that memo of recovery is not proved or it was prepared contrary to procedure prescribed if any, as well as I have already mentioned that prima facie, there is no illegality in the arrest memo/recovery memo even in view of judgment of Ramanand (supra) and other aspects will be considered by Trial Court on basis of evidence.

15. The hammer recovered from applicant is 9 c.m. long with head of diameter of 4 c.m. An argument is raised that nature of injuries could not be caused by a hammer and size of lacerated wounds are 4cm x 1.5cm, 3cm x 1cm, 4cm x 1.5cm, 3cm x 1cm, 5cm x 4cm, 8cm x 3cm occipital region #fracture and Lw on Rt. parietal region with #fracture, which prima facie corroborate the size of hammer. 4 laceration is a tear produced by blunt trauma. The force and direction determine appearance, depth and associated injuries are such as fractures. Injuries caused by hammer blows are example of laceration, therefore, prima facie above argument has also no force.

16. It is also relevant to mention here that coordinate Bench has observed that "recovery of vivo mobile phone" from applicant is false and planted and the same does not belong to deceased. However, it appears that it was an observation without consideration of any material on record, therefore, it has no legal consequence as well as role assigned to co-accused is of providing a hammer to applicant and causing disappearance of dead body, whereas role assigned to present applicant to cause multiple injuries to deceased.

17. In view of above, there is no subsequent event of fact or law which requires consideration of this Court in the present second bail application.

18. The second bail application is hereby rejected.

Order Date :- April 18, 2023

Nirmal Sinha

[Saurabh Shyam Shamshery, J.]