Allahabad High Court
Vijay And Another vs State Of U.P. And 3 Others on 9 August, 2023
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:160246
Court No. - 69
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30172 of 2023
Applicant :- Vijay And Another
Opposite Party :- State Of U.P. And 3 Others
Counsel for Applicant :- Pradeep Kumar,Piyush Patel
Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
1. List revised.
2. Heard SriPiyush Patel, learned counsel for the applicants, Sri Virendra Pratap Singh, learned counsel for the State and perused the material on record.
3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants Vijay and Suldu @ Mukesh, seeking enlargement on bail during trial in connection with Case Crime No. 241 of 2021, arising out of Special Session Trial No. 700 of 2021, under Sections 302, 201, 376-D IPC and 5/6 POCSO Act and 3(2)(5) SC/ST Act, registered at P.S. Brijmanganj, District Maharajganj.
4. The FIR of the present matter was lodged on 19.10.2021 under Section 302 IPC by Sumer Harijan against unknown persons alleging therein that his daughter aged about 12 years has been murdered and the dead body thrown beside the railway line. He states that he is living since last five years in village Vishunpur Adrauna. He is very poor and earns his livelihood by begging. From 17.10.2021 at about 12:00 pm, his daughter aged about 12 years was missing. He and other persons of the family had gone to Lahri Temple for begging and when they came back found that his daughter is missing. She was searched but could not be traced. On the next day i.e. 18.10.2021 the dead body of his daughter was found besides railway line. Her private parts were badly mutilated.
5. Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that the applicants are not named in the First Information Report. The present case is a case of circumstantial evidence. There is no eye witness to the murder. It is argued that the evidence as brought forward by the prosecution is of the applicants being last seen with the deceased along with co-accused Jitendra @ Babuni. It is argued that even the said version is not consistent in itself inasmuch as one witness states of last seeing them at about 05:00 pm whereas the other witness states the time as 06:00 pm. It is argued that the dead body was recovered on the next day i.e. 18.10.2021 at about 12:00 pm. The time gap since the accused were last seen with the deceased and the recovery of the dead body is too much. It is argued that as such the possibility of false implication of the applicants is there and the prosecution has not completed the chain of circumstances. It is argued that the next circumstance as relied by the prosecution is the confessional statement of the applicant during investigation of the present case and also that although underwear of the applicant has been recovered by the police but the same is not incriminating in any manner. It is further argued that the trial in the present matter is going on and as such there are no chances of the applicants tampering with the evidence. It is further argued that as of now six prosecution witnesses have been examined.
6. Learned counsel has further argued while placing the postmortem report of the deceased that the doctor conducting the postmortem has opined the cause of death due to shock and hemorrhage as a result of animal bite. It is argued that the same would go to show that the deceased died due to some animal bite. The applicants are in jail since 23.10.2021. Further, learned counsel has placed the judgment of the Apex Court in the case of S. Kaleeswaran Vs. State by the Inspector of Police, Tamil Nadu : 2023 (1) JIC 429 (SC) and argued that the Apex Court has held in the said case that time gap between the accused last seen with the deceased and the recovery of the dead body if is too much the same would not be clinching against the accused persons.
7. Per contra, learned counsel for the State opposed the prayer for bail and argued that the girl aged about 12 years has been sexually exploited and then murdered. Her dead body shows brutality of the utmost nature wherein teeth marks were found on her abdomen and scratches were found on various places on the body. The internal organs of the body were found to be cut. It is argued that a clear description of the site of injuries can very well be seen from the diagram of the body which shows the places of injuries. It is argued that there is an evidence of last seen of the applicants at the place of incident. They were seen consuming liquor at the said place after which the dead body of the deceased was found. It is argued that the postmortem report shows that the deceased was badly murdered. It is argued that there is no reason for false implication of the applicants and as such the prayer for bail of the applicants be rejected.
8. After having heard learned counsels for the parties and perusing the records, it is evident that the present case is a case of circumstantial evidence. The First Information Report was lodged under Section 302 IPC but during investigation, Sections 201, 376-D IPC, Section 5/6 POCSO Act and Section 3(2)(5) SC/ST Act have been added. The evidence in the matter against the applicants is of last seen with the deceased at the place of occurrence consuming liquor. The body of the deceased was found to have scratch marks on various places and even teeth bite marks. The internal organs were badly mutilated and even some of the parts were missing and eaten by animals. As per postmortem report, the teeth marks and the scratches would go to show that there had been assault on her. The applicants have not disclosed as to when they parted ways with the deceased. The Apex Court in the case of Surajdeo Mahto and another Vs. State of Bihar : (2022) 11 SCC 800 has held that the accused has to disclose as to when he parted ways with the deceased. In the present case, the evidence of last seen is on 17.10.2021 at about 06:00 pm and the dead body was recovered on 18.10.2021 at about 12:00 pm. The time since death has been opined to be about one day which corroborates with the prosecution case, I do not find it a fit case for bail.
9. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicants on bail.
10. The bail application is, accordingly, rejected.
Order Date :- 9.8.2023
M. ARIF
(Samit Gopal, J.)
