Tayyab @ Aadi vs State Of U.P. And Another
2023 Latest Caselaw 25535 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:182081
 
Court No. - 85
 
Case :- CRIMINAL APPEAL No. - 7550 of 2023
 
Appellant :- Tayyab @ Aadi
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Nitin Srivastava,Bipin Kumar,Jai Prakash,Rajrshi Gupta
 
Counsel for Respondent :- G.A.,Abhishek Kumar Jaiswal,Amit Daga
 

 
Hon'ble Mayank Kumar Jain,J.

1. Supplementary affidavit filed on behalf of appellant is taken on record.

2. Counter affidavit filed on behalf of informant/opposite party no.2 is also taken on record.

3. Heard learned counsel for the appellant, Sri Abhishek Kumar Jaiswal, learned counsel for the informant/opposite party no.2, learned Additional Government Advocate for the State of U.P. and perused the record.

4. This criminal appeal under Section 14-A(2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant with the prayer to set aside the bail rejection order dated 30.06.2023 passed by learned Special Judge (SC/ST Act)/Additional Sessions Judge, Ghaziabad in Bail Application No. 4177 of 2023, arising out of Case Crime No. 3020 of 2018, under Sections 302, 201, 364A, 328, 411, 34, 392, 120-B IPC and Section 3 (2) 5 of SC/ST Act, Police Station Sahibabad, District Ghaziabad.

5. As per prosecution version, on 04.10.2018 at around 12 noon, the elder brother of the informant namely Naveen Kumar Das had gone to Chhatarpur by his Maruti Brezza bearing No DL 3CCE 3100 from his house but he did not return back. On 05.10.2018 at around 05.30 am in the morning informant got information that one Brezza bearing the aforesaid number was standing at Teela Bhaupura road, PS Sahibabad in burnt condition. When he reached alongwith his family members at the place of incident, he identified the dead body of his brother which was lying inside the car.

6. Learned counsel for the appellant argued that the appellant is innocent and he has been falsely implicated in this case. It is further submitted that there is no eye witness of the incident and the case of the prosecution rests upon circumstantial evidence. It is further submitted that appellant was not seen last time in the company of deceased by any of the witness. It is further submitted that appellant is not named in the F.I.R. The name of appellant was disclosed by Diksha, the sister of the deceased during her statement recorded under Section 161 Cr.P.c. wherein she has stated that in the evening of 04.10.2018, she received a call from his brother Naveen, who informed her that he has settled a flat at Chhatarpur and he would shift in that flat in coming Navratri. He also informed her that at that time he was present at Loni alongwith his friends Taiyyab @ Aadi (appellant), Samar and Talib. She further stated that she had suspicion that these aforesaid three persons had committed murder of his brother. It is further submitted that on 09.10.2018, all the three persons including the appellant as noted above arrested and from the possession of appellant Rs. one lakh and one I-phone mobile was recovered. Rs. 50,000/- had been recovered from the possession of co-accused Samar Khan. Rs. 2.50 lakh was also recovered from the diggi of the Scooty. One pass-port of the deceased, one Aadhar card, one pan card and two samsung mobile were also recovered from their possession. It is further submitted that as per the post-mortem report, the deceased died due to 100% burn injury. It is also submitted that as per the inquest report a complete burnt body was recovered from the aforesaid car. Learned counsel for the appellant referred the statement of PW4 Arvind Chaudhary who conducted the inquest report of the deceased, in which he has stated that there is no endorsement in the inquest report that by which mode the body was burn. It is further submitted that co-accused Talib and Samar have already been granted bail by the co-ordinate Bench of this Court on the basis of period of incarceration served by them vide orders dated 15.05.2023 passed in Criminal Appeal Nos.6011 of 2019 and 6155 of 2019 respectively. It is also submitted that there are 18 witnesses projected by the prosecution in the charge sheet while till now statements of only five witnesses have been recorded before the trial Court and there is no possibility of early conclusion of the trial. The appellant does not have any criminal history to his credit. Lastly, it is submitted by learned counsel for the appellant that there is no chance of the appellant fleeing away from the judicial process or tampering with the prosecution evidence. The appellant is languishing in jail since 09.10.2018 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

7. Per contra, learned A.G.A. assisted by learned counsel for the informant opposed the prayer for bail and drew the attention of the Court towards the confessional statement of present appellant in which he has confessed that he was having homosexual relation with the deceased, therefore, they were good friend. It is further contended that on 04.10.2018, Rs. 1 lakh were transferred from the bank account of deceased to the bank account of appellant just one day before the incident. Further, on the date of incident i.e. 05.10.2018 at about 04:31 am, Rs. 5 lakh were transferred from the bank account of the deceased to the bank account of appellant and on the same day the said amount were withdrawn by the appellant from his bank account. Therefore, there is strong motive against the appellant to commit murder of the deceased. The case of co-accused Talib and Samar who have been granted bail is distinguishable to the case of present appellant as no money transaction had been done by them from the deceased's bank account.

8. In rebuttal, learned counsel for the appellant opposed the arguments advanced by learned A.G.A. as well as learned counsel for the informant and submitted that sofar as relationship between the deceased and appellant as confessed by him in his confessional statement cannot be relied upon since confessional statement is not admissible in evidence. Only on the ground of money transaction it cannot be said that appellant is the author of the crime.

9. In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713, the Hon'ble Apex Court has observed that:-

"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India SCC para-15 it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

10. Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, this Court is of the view that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.

11. Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.

12. Let the appellant, namely, Tayyab @ Aadi involved in the above Case be released on bail on furnishing a personal bond and two local heavy 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 appellant will not tamper with the evidence during the trial.

(ii) The appellant will not pressurize/intimidate the prosecution witness.

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

(iv) 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.

(v) 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.

13. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

Order Date :- 20.9.2023/AKT