Akshay Kumar Yadav Alias Achchhu vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20025 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:50629
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 58 of 2022
 
Appellant :- Akshay Kumar Yadav Alias Achchhu
 
Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home And Anr.
 
Counsel for Appellant :- Rakesh Pathak,Jaleel Ahmad,Vijay Pathak
 
Counsel for Respondent :- G.A.,Shweta Singh
 
Hon'ble Shamim Ahmed,J.

1. The case is taken up in the revised call.

2. Learned counsel for the appellant has filed rejoinder affidavit today in Court in reply to the counter affidavit filed on behalf of State, which is taken on record.

3. Heard Shri Jaleel Ahmad, the learned counsel for the appellant, Shri Ashok Srivastava, the learned A.G.A. for the State-opposite party No. 1 as well as Ms. Shweta Singh, the learned counsel for the opposite party No. 2 and perused the entire record.

4. The present criminal appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant-Akshay Kumar Yadav alias Achchhu, against the impugned order dated 04.12.2021 passed by the learned Special Judge, S.C./S.T. Act, Faizabad in Bail Application No. 1943 of 2021, arising out of Case Crime No. 0376 of 2021, under Sections 302, 201, 120-B I.P.C. and Section 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Kotwali Rudauli, District Faizabad, whereby bail application of the appellant has been rejected.

5. Learned counsel for the appellant submits that the complainant, Ram Nevaj, had lodged the present F.I.R. on 18.08.2021 alleging therein that on 13.08.2021, his son, Mahesh Kanaujiya, after participating in wrestling and kabaddi, came to his house at about 3:00 pm., thereafter, after some time on receiving a call on his mobile phone of someone, he told his mother he is going for some necessary work and will come in the morning and he went away from his motorcycle. Thereafter, on 16.08.2021 through social media he came to know that dead body of his son is lying in a Nallah, thereafter he reached that place where police informed him that recovered dead body has been sent to the postmortem house, where he identified dead body of his son.

6. Learned counsel for the appellant further submits that appellant is innocent and has falsely been implicated in the case. The F.I.R. was lodged in unknown, his name came into light in the confessional statement of co-accused, he was not present at the time of incident, he does not know the deceased even he has no concern with the affairs of co-accused-Seema Yadav and the deceased, he has been implicated in the case due to brother of co-accused, Seema Yadav. It has further been argued that there is neither any evidence against him, nor there is any recovery on his pointing out and nor there is eye witness of the incident.

7. Learned counsel for the appellant further submits that F.I.R. has been lodged after an inordinate delay without any plausible explanation. The deceased was missing since 14.08.2021 but the F.I.R. was lodged on 18.08.2021, dead body of the deceased was recovered on 16.08.2021, which fact came into knowledge of the complainant through social media on 16.08.2021, but thereafter, after two days, the F.I.R. has been lodged by the complainant after due consultation. The postmortem of the deceased conducted on 16.08.2021 and as per the postmortem report cause of death was found to be asphyxia probably as a result of ante mortem events of smothering. The injuries are not on the vital part. Viscera was preserved, but till date viscera report is not on the record.

8. Learned counsel for the appellant further submits that appellant is innocent and has falsely been implicated in the case. There is no direct evidence to connect the appellant in the crime. It is purely a case of circumstantial evidence and no one had seen that appellant had committed murder of complainant's son.

9. Learned counsel for the appellant further submitted that the entire prosecution story as alleged is false and fabricated, all the witnesses are interested witness, thus, there evidence is not believable.

10. Learned counsel for the appellant further submitted that there is no role of appellant in the alleged crime, therefore, he may be enlarged on bail by this Court sympathetically and the present appeal may be allowed.

11. Per contra, Ms. Shweta Singh, the learned counsel for the opposite party No. 2 opposed the prayer for bail and submitted that the appellant is involved in a heinous crime. He had committed murder along with the other co-accused. The co-accused, Seema in her confessional statement has stated that the deceased was in love affair with her, Seema, thereafter physical relations were developed between them which remained continued for several years, which fact was also came into knowledge of in-laws of Seema and also to other villagers, on account of which image of Seema was defaming. After making conspiracy to eliminate the deceased, on 13.08.2021 the co-accused, Seema called the deceased to her parental house, where she served him tea by mixing three intoxicated tablets and after serving him meal slept him on a cot, and when the deceased went asleep, all the three accused committed murder of the deceased, the co-accused, Bhanu Yadav sat on the chest of deceased and pressed his mouth by a pillow, while appellant was holding his legs and Seema had strangulated his neck by a piece of cloth, and thereafter on the same night co-accused, Bhanu Yadav and the appellant put the dead body of the deceased on his motorcycle and thrown away his dead body in a Nallah situated at the outside of the village.

12. Learned counsel for the opposite party No. 2 further submits that mother and wife of the deceased also made suspicion in there statements that Seema Yadav had committed murder of the deceased because of there illicit relations. The appellant is the brother of co-accused, Seema and as per her statement appellant was also involved very much in the said crime, thus, his prayer for bail may be rejected and the appeal may be dismissed.

13. Shri Ashok Srivastava, the learned A.G.A. for the State is also in agreement with the submissions advanced by the learned counsel for the opposite party No. 2 and submits that prayer for bail of appellant may be rejected.

14. I have heard the rival submissions of the learned counsel for the parties and have gone through the record.

15. Considering the rival submissions of the parties, the nature of allegations made in the F.I.R., the nature and gravity of the offence, the complicity of accused-appellant and further considering the statements of mother and wife of deceased as well as considering the statement of co-accused, Seema, wherein she admits that all the three accused including the appellant were actively involved in the murder of the deceased, co-accused Seema has herself stated regarding circumstances which arise murder of the deceased that deceased was in love affair with her, thereafter physical relations were developed between them which remained continued for several years, which fact was also came into knowledge of in-laws of Seema and also to other villagers, on account of which image of Seema was defaming, therefore she made conspiracy and committed the murder of the deceased with the help of appellant and other co-accused, Bhanu Yadav, who are her real brothers, thus, there is strong evidence indicating the involvement of the appellant in the crime, therefore, chain of circumstances is complete and is connecting the appellant in commission of murder of the deceased in view of the judgment of Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178. Thus, it cannot be said that it is a case of circumstantial evidence. The prosecution has completed the chain of evidence indicating involvement of appellant in the crime. Therefore appellant's involvement is very much connected in the murder of the deceased. I find no good ground to enlarge the applicant on bail.

16. In view of the above, the bail application of the applicant is rejected.

17. Consequently, the present appeal is dismissed.

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

Order Date :- 1.8.2023

Mustaqeem/ Arvind