Dipanshu Sharma vs State Of U.P.
2023 Latest Caselaw 15288 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:105598
 
Reserved on : 10.05.2023
 
Delivered on :16.05.2023
 
Court No. - 76
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8401
 
of 2023
 
Applicant :- Dipanshu Sharma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashish Pandey,Abhinav Prasad,Gaurav Singh Tomar,Inder Pal Singh Tomar
 
Counsel for Opposite Party :- G.A.,Tabassum Hashmi
 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Ms. Nushra Siddiqui, Advocate, holding brief of Sri Inder Pal Singh Tomar, learned counsel for applicant, Ms. Tabassum Hashmi, learned counsel for informant and Sri Sunil Kumar Srivastava, learned A.G.A. for State.

2. Applicant has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.1457 of 2021 under Sections 302, 201, 34 I.P.C., Police Station- Kavinagar, District - Ghaziabad after rejection of his Bail Application vide order dated 30.08.2022 passed by Sessions Judge, Ghaziabad.

3. In the present case, an F.I.R. was lodged on 28.08.2021 on the direction of learned Magistrate on an application filed by complainant under Section 156(3) Cr.P.C. on 03.03.2021 in regard to an occurrence which took place on 07.11.2020 stating that applicant and other co-accused used to visit his son during the relevant time and they all also used to visit other places and they have taken few lakhs rupees from informant's son towards business transaction.

4. It was alleged that on 06.11.2020 both the accused persons have called victim and he went to meet them, however, in late night, it was communicated by victim that he shall return home on the next day.

5. It was further alleged that on the next day i.e. 07.11.2020 at about 9.30 a.m. it was communicated by family members of present applicant that victim was not well and they were trying to admit him in a hospital and when informant reached hospital, he found that victim was already dead.

6. Later on, the informant came to know that victim had already died at place of present applicant and they left dead body victim at the hospital and ran away. It was suspected that named accused persons have committed murder of victim.

7. According to post-mortem report, immediate cause of death remained uncertain, therefore, viscera was preserved. Viscera report has been placed on record which indicates the presence of 'Organochloro Insecticide' poison.

8. Learned counsel for applicant submitted that delay in lodging F.I.R. was not duly explained, and probably it was a case of over-drinking of alcohol.

9. Learned counsel further submitted that prosecution case rests upon circumstantial evidence and no motive has been assigned to applicant to commit crime. No external injury was found in post-mortem report. Applicant was recently appointed as a Government Servant and it appears that complainant side was not happy for the applicant and, therefore, he has been falsely implicated by complainant side. Applicant has no criminal history as well as that similarly situated co-accused Shivam Sharma (Criminal Misc. Bail Application No.43744 of 2022) has been granted bail by a co-ordinate Bench on 21.03.2023.

10. Learned counsel for applicant also submitted that due process of sending viscera was not followed and in this regard she has placed reliance on a judgment passed by Supreme Court in the case of M. Nageswar Rao Vs. State of Andhra Pradesh, (2011) 2 SCC 188 as well as she has placed some documents which are photocopies from some books, however, sources thereof have not been brought on record i.e. cover page including author/publisher/edition of book/materials relied upon. A document was also placed on record which is in regard to collection, storage and transportation Crime Scene Biological samples i.e. process of sending material collected from crime scene for scientific investigations.

11. Learned A.G.A. for State and learned counsel for complainant have opposed the bail and they submitted that there was motive for the applicant and co-accused to commit crime as there were certain dispute between accused and deceased on money transaction. Deceased went to the place of accused persons after receiving a phone call from them. It has also come up on record that victim has made a phone call in the night informing that he will stay at accused persons' place and on next day victim was found dead at the hospital, therefore, there shall be a burden on accused persons also. The accused persons have not able to explain under which circumstances victim has died.

12. Learned counsel for complainant has adopted the above submissions and has submitted that reasons assigned in the bail order whereby bail was granted to co-accused were not in terms of the judgment passed by Supreme Court in the case of Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497.

13. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

14. In the present case, from evidence collected during investigation it transpires that deceased went to the place of accused persons in night and later on he informed to his family members that he will stay at the place of accused persons and on next day he was found dead at the hospital where accused persons left him unattended. Therefore, there is substance in the argument of learned A.G.A. for State as well as learned counsel for complainant that in these circumstances, accused persons have to discharge a burden under Section 106 of Evidence Act.

15. The argument of learned counsel for State that evidence was also collected during investigation regarding dispute between accused persons and deceased in respect of some business transactions has also substance. In post-mortem report cause of death was not certain, therefore, viscera was preserved and according to its report 'Organochloro insecticide' was found.

16. A half hearted argument was raised by learned counsel for applicant that viscera was not preserved and sent in terms of due process and excessive intake of alcohol may also lead to formation of above referred poison. The Supreme Court in M. Nageswar Rao(supra) has not disputed the cause of death of victim therein on the basis of viscera report as mentioned in paragraph 24 of the said judgment.

17. The photocopies placed before this Court are not accompanied by any document in order to show source of it. It appears that the said documents are for the purpose of forwarding sample for the purpose of D.N.A. finger printing to D.N.A. typing laboratory as well as nothing has been mentioned about the time bound process for sending the viscera to laboratory. The other documents only indicate the circumstances under which viscera should be preserved as well as the amount thereof and it also indicates that in case, there is volatile poison, viscera may not be preserved in a polythene bag as the same may diffuse through plastic, however, in the present case, sample appears to be correctly examined.

18. The other document is in regard to collection and preservation of biological evidence by Investigating Officer and again it does not relate to the manner of preservation of viscera as it is about preservation of sample of blood, semen, bones etc. recovered from place of occurrence.

19. In these circumstances, the Court cannot place reliance on above referred documents as well as on basis of half hearted approach of learned counsel for applicant to hold that viscera report cannot be relied upon.

20. There is substance in the argument of learned A.G.A. for State as well as learned counsel for informant that bail granted to the co-accused Shivam Sharma has not been assigned by reasons in terms of Manoj Kumar Khokhar (supra) and Brijmani Devi (supra), therefore, it would not be a case of parity.

21. As discussed above, a night before occurrence, victim went to the place of accused persons and stayed there at night, however, he was found dead on the next day at hospital, where accused persons left him. There is no explanation on the side of accused as to under which circumstances the victim died. The submission that it was a case of over intake of alcohol does not corroborate by any evidence, nor any material, whereas viscera report indicates that it was a case of poisoning.

22. As referred above, motive has also been assigned to applicant that there was a dispute regarding financial transactions, therefore, applicant who is in jail since 08.07.2022 has not made out case of bail. Accordingly, bail application is rejected.

23. It is advised to learned counsel for applicant that whenever document is placed before the Court, it should be accompanied with the first page of document i.e. the page which should indicate the name of book as well as publication and edition of book.

Order Date :- 16.05.2023

P. Pandey

[Saurabh Shyam Shamshery, J.]