Ankit Kumar vs State Of U.P.
2023 Latest Caselaw 22482 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:167435
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29759 of 2023
 

 
Applicant :- Ankit Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ajit Kumar
 
Counsel for Opposite Party :- G.A.,Surendra Narayan Mishra
 
and 
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33432 of 2023
 

 
Applicant :- Rahul
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Kumar Singh
 
Counsel for Opposite Party :- G.A.
 
and
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29020 of 2023
 

 
Applicant :- Dushyant
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mohammad Farooque Ansari
 
Counsel for Opposite Party :- G.A.,Surendra Narayan Mishra 
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Ajit Kumar, the learned counsel for applicant-Ankit Kumar, Mr. Atul Kumar Singh, the learned counsel for applicant-Rahul, Mr. Mohammad Farooque Ansari, the learned counsel for applicant- Dushyant and Mr. Surendra Narayan Misra, the learned counsel for first informant/opposite party-2 as well as the learned A.G.A. for State.

2. Perused the record.

3. These bail applications have been filed by applicants-Ankit Kumar, Rahul and Dushyant seeking their enlargement on bail in Case Crime No. 49 of 2023 under Sections 147, 149, 302, 201, 120B I.P.C. Police Station-Harduaganj, District- Aligarh, during the pendency of trial.

4. It transpires from record that an incident occurred on 31.01.2023 in which one person namely Dan Singh was murdered. Subsequently, dead body of the deceased was recovered on the same day i.e. 31.01.2023. On the information given by Neeraj Kumar husband Pradhan of village Luhara Qasimpur Road, inquest (panchayatnama) of the body of deceased was conducted on 31.01.2023 In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterised as homicidal.

5. After the proceedings of inquest were completed, a delayed F.I.R. dated 01.02.2023 was lodged by first informant Haripal Singh and was registered as Case Crime No. 49 of 2023 under Section 302 I.P.C.. Police Station-Harduaganj, District- Aligarh. In the aforesaid F.I.R. an unknown person has been arraigned as solitary accused.

6. After aforementioned F.I.R. was lodged, Investigating Officer proceeding with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Subsequent to above, the post-mortem of the body of deceased was conducted on 01.02.2023. The Autopsy Surgeon, who conducted autopsy of deceased body of the found following ante-mortem injuries on the body of deceased:-

i. Ligature mark of size 13 cm x 1 cm, in front of Nech (Anterior aspect) 10 cm below from Rt. Ear, 9 cm below left Ear, 6 cm from the chin .....size .........14 cm.

Horizontal Ligature mark. Nail mark tnt at Neck.

Bae of mare is brown, Radish, soft,

subcutaneous tissue underneath the ligature mark Ecchymosed.

7. In the opinion of Autopsy Surgeon, cause of death of the deceased was opined as asphyxia as a result of strangulation. During course of investigation, Investigating Officer examined first informant and other witnesses namely Haripal, Suneeta @ Ramwati, Radha, Gopal, Geeta, Rahul, Shiva and Sonu @ Chitranjan under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of five persons namely, Rajesh, Sonu @ Chitranjan, Rahul, Dushyant and Ankit is prima facie apparent in the crime in question. Subsequently, they were arrested and there statement were recorded under Section 161 Cr.P.C. On the pointing of accused Sonu @ Chitranjan the "Tippet" (Dupatta), which was used in strangulating the deceased was recovered. The vehicle BOLERO having registration U.P. 81 BZ0017 in which the deceased was taken prior to his death was also recovered form it's owner house name Lalta Prasad and as per his statement the vehicle was being driven by accused Sonu. One of the co-accused Sonu @ Chitranjan in his confessional statement before the investigating Officer has narrated the occurrence. According to this accused, Rajesh and Ankit, Mohan and K. P. Kunwarpal are involved in strangulating the deceased.

8. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of five persons namely, Rajesh, Sonu @ Chitranjan, Rahul, Dushyant and Ankit is established in the crime in question. He accordingly submitted the charge sheet dated 28.04.2023. whereby applicant Rahul and Dushyant have been charged sheeted under Sections 302, 301, 120B I.P.C. whereas applicant Ankit has been charge-sheeted under Sections 147, 149, 302, 201 I.P.C.

9. At the very outset, the learned counsel for applicants submit co-accused Rajesh has already been enlarged on bail by this Court vide order dated 10.07.2023 passed in Criminal Misc. Bail Application No. 29763 of 2023 (Rajesh Vs. State of U.P.), For ready reference, the order dated 10.07.2023 is extracted herein under:-

" Heard Ms. Anjali Singh, learned counsel for the applicant, Sri S. N. Mishra, learned counsel for the informant and learned A.G.A. for the State.

There is allegation against unknown accused regarding commission of offence of murder of one person (brother of the informant).

Learned counsel for the applicant submits that applicant was not named in the first information report. It is a case of circumstantial evidence. Motive of crime has been assigned to co-accused by the wife of the deceased, Smt. Radha that the co-accused Mohan and Dushyant had conspired with her and they have committed murder of the deceased because he was having money but was not giving it to anyone. Applicant is alleged to be friend of co-accused, Mohan and on the basis of confessional statement of co-accused, K.P. alias Kunwarpal his name has surfaced as the person who was also involved in the alleged crime. He further submits that the cause of death of deceased was found to be strangulation and six persons have been implicated for the same. Motive of crime has not been assigned to the applicant and at the most only implication under Section 120-B I.P.C can be made. Applicant is in jail since 19.04.2023.

Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant, Rajesh, involved in Case Crime No.0049 of 2023, under Sections 147, 149, 302, 201 I.P.C, Police Station Harduaganj, District- Aligarh be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.

(v) 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.

In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :- 10.7.2023 "

10. Similarly co-accused Sonu @ Chitranjan has also been enlarged on bail by this Court vide order dated 13.07.2023 passed in Criminal Misc. Bail Application No. 25422 of 2023 (Sonu @ Chitranjan Vs. State of U.P.), For ready reference, the order dated 10.07.2023 is reproduced herein under:-

"By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 49 of 2023 at Police Station-Harduaganj, District-Aligarh under Sections 302, 201 and 120-B I.P.C. The applicant is in jail since 28.02.2023.

The bail application of the applicant was rejected by the learned trial court on 10.04.2023.

The following arguments made by Shri Ashutosh, learned counsel assisted by Shri Dharmendra Kumar Rajput, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Surendra Narayan Mishra, learned counsel for the informant and Shri Shrawan Kumar Dubey, learned AGA from the record, entitle the applicant for grant of bail:

1. There is no direct evidence against the applicant. This is a case of circumstantial evidence.

2. The chain of incriminating circumstances against the applicant is not complete and the prosecution evidence does not link the applicant to the offence.

3. The principal offender Mohan who is the son-in-law of the deceased had accompanied the deceased on his last and final journey.

4. Applicant is neither the driver nor the owner of the vehicle in which the deceased and the principal accused Mohan had travelled.

5. The applicant is in no way connected with the accused persons and had no motive to commit the offence.

6. The applicant has been nominated on the basis of statement made by police informer whose credentials are wholly suspect.

7. The recovered dupatta was planted on the applicant to burnish the credentials of the police authorities and cannot be connected to the offence.

8. There is no independent witness to the recovery.

9. The applicant has been nominated only because of his close relationship with another co-accused Rajesh. The said Rajesh has been enlarged on bail by this Court by order dated 10.07.2023 passed in Criminal Misc. Bail Application No. 29763 of 2023. The case of the applicant stands at a better footing but he seeks parity for grant of bail.

10. The applicant does not have any criminal history apart from this case.

11. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to cooperate with the court proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.

In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.

Let the applicant- Sonu @ Chitranjan be released on bail in the aforesaid case crime number, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below. The following conditions be imposed in the interest of justice:-

(i) The applicant will not tamper with the evidence or influence any witness during the trial.

(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

Order Date :- 13.7.2023 "

11. On the above premise, it is jointly urged by the learned counsel for applicants that case of present applicants is similar and identical to that of co-accused Rajesh, who has alrady been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicants could be so distinguished from aforesaid co-accused Rajesh so as to deny him bail. Recovery of Duppatta, which was used in strangulating the deceased was recovered on the pointing out of co-accused Sonu @ Chitranjan. It is further contened that the vehicle in which the deceased was carried was diriven by co-accused Sonu @ Chitranjan, who has also been enlarged on bail. He therefore submits that in view of above and for the facts and reasons recorded in the bail orders dated 10.07.2023 and 13.07.2023, applicants are also liable to be enlarged on bail on the ground of parity. Even otherwise applicants Ankit and Dushyant are men of clean antecedents inasmuch they have no criminal history to their credit except the present one. Applicant Rahul has criminal history of two cases. However, the same has been duly explained in paragraph 38 of the affidavit filed in support of bail application of applicant Rahul. According to the learned counsel for applicant-Rahul, he was a juvenile on the date of commission of crime relating to Case Crime No. 53 of 2014 under Section 302 I.PC. Applicant Ankit is in custody since 18.02.2023. Applicant Rahul is in custody since 05.02.2023 and applicant Dushyant is in custody since 05.02.2023. As such, they have under-gone more than six and a half months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. It is thus urged that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

12. Per contra, the learned A.G.A. and the learned counsel for first informant have vehemently opposed the present bail applications. They submit that since the applicants are charge-sheeted accused, therefore they do not deserve any indulgence by this Court. Complicity of accused /applicants is fully established in the crime in question. Criminality committed by applicants is joint and common therefore they do not deserve any sympathy by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

13. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel for first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that co-accused Rajesh and Sonu @ Chitranjan have already been enlarged on bail by this Court, there is no such distinguishing feature on the basis of which, case of present applicants can be so distinguished from aforementioned co-accused so as to deny them bail, present case is a case of circumstantial evidence therefore complicity of the applicants in the crime in question has to be judged in the light of parameters laid down by Apex Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622, however, all the the parameters provided in aforesaid judgement are not fully satisfied against present applicants, upto this stage, co-accused Sonu @ Chitranjan from whose possession Dupatta, which was used for strangulating the deceased was recovered, the vehicle in which the deceased was carried prior to his death was being driven by co-accused Sonu @ Chitranjan who has already been enlarged on bail, as per confessional statement of co-accused Sonu, role of strangulating the deceased was performed by present applicants alongwiht Rajesh who has also been enlarged on bail, the charge sheet having been submitted therefore entire evidence sought to be relied upon by the prosecution against applicants, stands crystalized yet in spite of above the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the course of trial, the period of incarceration undergone, the explained criminal history of applicant-Rahul, the clean antecedents of applicant Ankit Kumar and Dushyant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

14. Accordingly the bail application is allowed.

15. Let the applicant-Ankit Kumar, Rahul and Dushyant involved in aforesaid case crime number be released on bail on their 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) Applicants will not tamper with prosecution evidence.

(ii) Applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicants will not indulge in any unlawful activities.

(iv) Applicants will not misuse the liberty of bail in any manner whatsoever.

16. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send them to prison.

Order Date :- 21.8.2023

YK