Mantu Verma Alias Vivek Verma vs State Of U.P. Thru. Its Prin. Secy. ...
2023 Latest Caselaw 17541 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 

 
Neutral Citation No. - 2023:AHC-LKO:46991
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 876 of 2022
 
Appellant :- Mantu Verma Alias Vivek Verma
 
Respondent :- State Of U.P. Thru. Its Prin. Secy. Home And Another
 
Counsel for Appellant :- Upendra Prakash Pathak,Atul Verma,Hari Krishna Verma,Sanjeet Kumar Patel
 
Counsel for Respondent :- G.A.,Nisha Srivastava
 

 
Hon'ble Shamim Ahmed,J.

1. Heard Shri Atul Verma, the learned counsel for the appellant as well as Mrs. Nisha Srivastava, learned counsel for the opposite party No.2 and Sri Ashok Kumar Srivastava, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

2. The pleadings have been exchanged between the parties.

3. The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 15.01.2022 passed by the Special Judge Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Barabanki in Bail Application No.146 of 2022 ( Mantu Verma Alias Vivek Verma Vs. State of U.P.), arising out of Case Crime No.722/2021, under Section 302, 120 B I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Kotwali Nagar, District Barabanki, whereby the bail application of the appellant has been rejected.

4. Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case. The entire prosecution story is false and fabricated and lodged only with the intention to falsely implicate the appellant.

5. Learned counsel for the appellant further submits that an F.I.R. dated 05.09.2021 was lodged by the brother of the deceased regarding an incident dated 04.09.2021 in which he has stated that he has lodged a missing report of his brother and it was clearly stated that after search it was found that his brother was murdered by someone and his body was lying in the Village Naare Ka Purwa near hen farm and there is injury on his neck and a suspicion was caused on one Pankaj Kumar, who called the deceased by mobile phone.

6. Learned counsel for the appellant further submits that in the F.I.R. name of Pankaj Kumar was only mentioned and the name of the appellant was not found place in the F.I.R. nor there is any whisper in the F.I.R. regarding the role of the appellant. He further submits that the at the time of inquest also the name of the appellant was not in picture and at the time of inquest the complainant was witness of the inquest. Thereafter, the body of the deceased was sent for the post-mortem and the post-mortem was conducted on 05.09.2021. As per post-mortem report the cause of death was shock due to ante-mortem injuries and three injuries were seen on the body of the deceased.

7. Learned counsel for the appellant further submits that the Investigating Officer recorded the statement of the complainant under Section 161 Cr.P.C. in which a new story has been build up by the complainant and first time the name of the appellant came in picture that the wife of the deceased used to talk on mobile phone with the appellant and it was also stated that she also used to talk to several other persons, as she is a woman of modern time and since she used to talk to the appellant due to this reason there was always fight took place between the deceased and his wife.

8. Learned counsel for the appellant further submits that only on the statement of the complainant that the appellant used to talk with the wife of the deceased it cannot be said that the appellant is involved in the alleged crime.

9. Learned counsel for the appellant further submits that the other witness, namely Sadhna Verma has also only stated this fact that the appellant used to talk with the wife of the deceased and due to their conspiracy he was killed. Another witness Durgesh also stated almost the same thing which was stated by Sadhna Verma in her statement recorded under Section 161 Cr.P.C.

10. Learned counsel for the appellant while placing reliance upon the judgment of Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 has argued that it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the appellant in the present crime. No one has seen the appellant near the dead body of the deceased nor any witness has seen the appellant accompanying the deceased nor it is a case of prosecution that the mobile phone, which was recovered is of the appellant. He further submits that there is no any direct witness of the alleged crime, thus it cannot be said that the appellant is involved in the present case. The appellant is roped by the police only to give gravity of the offence.

11. Learned counsel for the appellant further submits that during investigation blood stained shoes was recovered but the shoes was not belonged to the appellant. He further submits that a false recovery of blood stained knife has been shown on the pointing out of the appellant, whereas the appellant did not have any knife.

12. Learned counsel for the appellant further submits that the person who was named in the F.I.R., namley, Pankaj Kumar @ Rajnit Yadav by whose phone the last call was made to the deceased was already enlarged on bail by a co-ordinate Bench of this Court in Criminal Appeal No. 2141 of 2021 vide order dated 28.03.2022. The copy of the said order is annexed as Annexure 9 to the affidavit filed in support of the bail application. He further submits that the case of the appellant is not on the worst footing than that of the other co-accused, Pankaj Kumar @ Rajnit Yadav who has been already granted bail by co-ordinate Bench of this Court.

13. Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 08.09.2021, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

14. Learned counsel for the applicant further submits that the applicant is in jail since 08.09.2021 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

15. Learned counsel for the appellant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

16. Learned counsel for the appellant further submits that ratio of law applicable in above those cases is also applicable in the case of the appellant, therefore, the instant criminal appeal deserves to be allowed and the order dated 15.01.2022 passed by the Special Judge Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Barabanki in Bail Application No.146 of 2022 ( Mantu Verma Alias Vivek Verma Vs. State of U.P.), arising out of Case Crime No.722/2021, under Section 302, 120 B I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Kotwali Nagar, District Barabanki, deserve to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

17. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 08.09.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

18. Learned counsel for the appellant has drawn attention of this Court towards the judgment of the Hon'ble Apex Court in the case of Hitesh Verma Vs. The State of Uttrakhand reported in (2020) 10 SCC,wherein in para 15 relying on the judgment passed in Swaran Singh and others Vs. State (2008) 8SCC 435 has held as under:

"as per the F.I.R., the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (nor merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered in any place within public view is not made out. In the list of witnesses appended to the charge-sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said of be present within the four walls of the building as per the FIR and/or charge-sheet."

19. Learned counsel for the appellant further submits that no ingredients under Section 3 (2) (v) SC/ST Act is attracted against the appellant, as no one has seen the alleged incident committed by the appellant at a public place or public view.

20. Per contra, Mrs. Nisha Srivastava, learned counsel for the opposite party No.2 has vehemently opposed the prayer and submits that the accused/ appellant is not entitled to be enlarged on bail but did not dispute this fact that it is a case of circumstantial evidence and no any independent witness has assign the role of the appellant in committing the alleged crime along with the co-accused Pankan Kumar @ Rankit Yadav and she also did not dispute this fact that the person who was named in the F.I.R., namley, Pankaj Kumar @ Rajnit Yadav by whose phone the last call was made to the deceased was already enlarged on bail by a co-ordinate Bench of this Court in Criminal Appeal No. 2141 of 2021 vide order dated 28.03.2022. The same argument has been advanced by Sri Ashok Kumar Srivastava, learned A.G.A. for the State and submits that the accused/ appellant is not entitled to get any relief by this Court.

21. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the name of the appellant was not found place in the F.I.R. nor there is any whisper in the F.I.R. regarding the role of the appellant. At the time of inquest also the name of the appellant was not in picture, in the statement of the complainant recorded under Section 161 Cr.P.C. first time the name of the appellant came in picture and the fact that the wife of the deceased used to talk on mobile phone with the appellant due to this reason there was always fight took place between the deceased and his wife and considering the fact the appellant used to talk with the wife of the deceased it cannot be said that the appellant is involved in the alleged crime and further considering that it is a case of circumstantial evidence and no one has seen the appellant near the dead body of the deceased nor any witness has seen the appellant accompanying the deceased nor it is a case of prosecution that the mobile phone, which was recovered is of the appellant and considering the fact that the person who was named in the F.I.R., namley, Pankaj Kumar @ Rajnit Yadav by whose phone the last call was made to the deceased was already enlarged on bail by a co-ordinate Bench of this Court in Criminal Appeal No. 2141 of 2021 vide order dated 28.03.2022 and considering the fact that no ingredients under Section 3 (2) (v) SC/ST Act is attracted against the appellant, as no one has seen the alleged incident committed by the appellant at a public place or public view and further considering the fact that appellant is in jail since 08.09.2021 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda (supra), Kamal (supra), Takht Singh (supra), and Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, Hitesh Verma (supra), this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside.

22. Accordingly, the appeal is allowed. Consequently, the order dated order dated 15.01.2022 passed by the Special Judge Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Barabanki in Bail Application No.146 of 2022 ( Mantu Verma Alias Vivek Verma Vs. State of U.P.), arising out of Case Crime No.722/2021, under Section 302, 120 B I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Kotwali Nagar, District Barabanki is hereby reversed and set aside.

23. Let the appellant, Mantu Verma @ Vivek Verma, be enlarged on bail in Case Crime No.722/2021, under Section 302, 120 B I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Kotwali Nagar, District Barabanki with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

24. The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 17.07.2023

Arvind