Mukesh Chandra vs State Of U.P.
2023 Latest Caselaw 26724 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:188977
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37412 of 2023
 

 
Applicant :- Mukesh Chandra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Kumar Kartikeya,Arvind Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. K. Kartikeya, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Mukesh Chandra, seeking his enlargement on bail in Case Crime No. 0095 of 2023, under Sections 302, 201, 120B IPC, Police Station-Rajpura, District-Sambhal during the pendency of trial.

4. Record shows that in respect of an incident which is alleged to have occurred in between 11.03.202 to 16.03.2023, a delayed FIR dated 22.03.2023 was lodged by first informant-Ramkishore (father of the deceased) and was registered as Case Crime No. 0095 of 2023, under Sections 302, 201 IPC, Police Station-Rajpura, District-Sambhal. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.

5. The gravamen of the allegations made in the FIR is to the effect that younger son of first informant namely Deepak aged about 20 years left his home on 11.03.2023 at around 05:30 PM. The deceased while leaving the home is said to have informed the inmates of the house that he is going to the field. However, he did not return home. Thereafter, a search regarding his whereabouts was made but his location could not be searched.

6. It is apposite to mention here that before aforementioned FIR was lodged, the dead body of deceased was recovered on 16.03.2023 on the information given by Surajpal Singh. Thereafter, the inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was said to be homicidal and the cause of death of deceased was opined as strangulation. Thereafter the post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased found the following ante-mortem injuries on the body of deceased:-

"A multiple ligature of plastic/fiber cord, Each circumference of 30 cm long and 0.5 cm breath present around the neck, Becoming putrefaction. No ligature mark is seen."

7. In the opinion of Autopsy Surgeon, the cause of death of deceased was said to be Asphyxia as a result of ante-mortem strangulation.

8. It is thereafter, that the FIR referred to above was lodged.

9. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and other witnesses namely - (1) Ram Kishore, (2) Prem Pal, (3) Bhuri Devi, (4) Pinki Devi and (5) Yashoda under Section 161 Cr.P.C. The complicity of applicant emerged in the statement of one of the witnesses examined under Section 161 Cr.P.C. namely Prempal. However, the said witness has not directly implicated the applicant in the crime in question but simply on the basis of heresay evidence. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of 2 persons namely - Mukesh Chandra (applicant herein) and Jhamman is established in the crime in question. He, accordingly, submitted the charge sheet dated 06.06.2023 whereby aforementioned accused have been charge sheeted under Section 302, 201 and 120B IPC.

10. Learned counsel for applicant submits that applicant is innocent. He is not named in the FIR. Though applicant is a charge sheeted accused yet he is liable to be enlarged on bail. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence in question. The complicity of accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 (Paragraph 152). However, up to this stage, none of the parameters laid down by the Apex Court in aforementioned judgment are satisfied against present applicant. The only incriminating material that has emerged against applicant is the statement of one of the witnesses examined under Section 161 Cr.P.C. namely Prempal. However, perusal of the statement of aforesaid witness, copy of which is on record at page 68 of the paper book, it is evident that the same is based upon heresay evidence. The said witness is not an eye witness of the occurrence. Up to this stage, neither any recovery has been made from the applicant nor any evidence of last seen has emerged against applicant. No strong motive has also emerged against applicant to commit the crime in question nor any animus has been gathered against the applicant for committing the crime in question. The other incriminating circumstance that has emerged against the applicant in the CDR report. However, simply on the basis of CDR report, an inference regarding the guilt of the applicant cannot be inferred in the crime in question.

11. Even though, applicant has criminal history of one case but the same is not so grievous so as to deny bail to applicant. Referring to the three Judges Bench judgment of Supreme Court in Brijmani Devi Vs. Pappu Kumar and Anohter, (2022) 4 SCC 497, he submits that an accused cannot be denied bail simply on the basis of criminal history. It is thus urged that even though applicant has criminal history of one case yet he is liable to be enlarged on bail. Applicant is in jail since 24.04.2023. As such, he has undergone more than 5 months of incarceration. The police report 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 applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

12. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. 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 applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, an inference of guilt of an accused in a case based upon circumstantial evidence can be drawn only in accordance with the parameters laid down by the Apex Court in the case of Sharad Birdhichand Sarda (Supra), however, up to this stage, none of the parameters laid down by the Apex Court in aforementioned judgment are satisfied against applicant, no recovery has been made from the applicant, there is no evidence of last seen that has emerged against applicant, no strong motive has emerged against applicant to commit the crime in question nor there is any animus with the applicant to commit the crime in question, the only incriminating circumstance that has emerged against applicant is the statement of the one the of witnesses examined under Section 161 Cr.P.C. namely Prempal, however, the said witness is not an eye witness of the occurrence, this statement is based upon heresay evidence, merely on the basis of CDR report, an inference of guilt of an accused cannot be inferred, though applicant has criminal history of one case but the same is not so grievous so as to deny bail to the applicant, the judgment of the Supreme Court in Brijmani Devi (Supra), the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments 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-Mukesh Chandra, be released on bail in the aforesaid case crime number on his 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

16. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 3.10.2023

Vinay