Allahabad High Court
Heeralal Yadav vs State Of Up on 14 May, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:88299
Reserved On-09.05.2024
Delivered On-14.05.2024
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8939 of 2024
Applicant :- Heeralal Yadav
Opposite Party :- State of U.P.
Counsel for Applicant :- Sanjay Kumar Yadav
Counsel for Opposite Party :- G.A.,Sher Bahadur Yadav
Hon'ble Siddharth,J.
1. Heard Sri Sanjay Kumar Yadav, learned counsel for the applicant; Sri Sher Bahadur Yadav, learned counsel for informant as well as the learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant, Heeralal Yadav, with a prayer to release him on bail in Case Crime No. 196 of 2023, under Sections 302, 201, 120-B IPC, Police Station- Kaptanganj, District- Azamgarh, during pendency of trial.
3. Learned counsel for applicant has submitted that bail of co-accused, Hanoj Yadav, has been granted by this Court vide Criminal Misc. Bail Application No. 48624 of 2023 by detailed and reasoned order on 16.11.2023 which is quoted hereinbelow:-
1. Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant,Hanoj Yadav, with a prayer to release him on bail in Case Crime No. 196 of 2023, under Sections 302, 201, 120-B IPC, Police Station- Kaptanganj, District- Azamgarh, during pendency of trial.
3. Learned counsel for applicant has submitted that bail of co-accused, Kamla Devi, has been granted by this Court vide Criminal Misc. Bail Application No. 40533 of 2023 by detailed and reasoned order on 05.10.2023 which is quoted hereinbelow:-
"1. Heard Sri Sanjay Kumar Yadav, learned counsel for the applicant; Sri Deepak Dubey, learned counsel for informant as well as the learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant, Kamla Devi, with a prayer to release him on bail in Case Crime No. 196 of 2023 under Sections 302, 201, 120-B IPC, Police Station Kaptanganj, District- Azamgarh, during pendency of trial.
3. There is allegation in FIR that on 23.07.2023 at about 12:00 hours, co-accused, Hanoj and Heera Lal Yadav, came to the house of the informant and took the father of the informant, Indrajeet Yadav, along on their motorcycle. When his father did not returned in the night, the informant tried to contact the co-accused aforesaid on phone unsuccessfully. He contacted his uncle, Chandrajeet Yadav, who informed that he saw the deceased with the co-accused on the bear shop in the market. The informant went to their house, but they were not found. On 25.07.2023 at about 9:00 pm a pamphlet was made viral by the police station which was of the father of the informant. Thereafter, he went to the police station and recognised the sleepers and shirt of his father. After identification of dead body, post mortem and last rites of the dead body was conducted. Thereafter, the informant came to know from different sources that his father was having relationship with the sister of co-accused, Hanoj, namely, Kamla Devi, the applicant in this case for last 20 years. His father had got a house constructed in the name of the applicant, Kamla Devi, at Azamgarh, which was sold by the applicant and her brothers, Hanoj and Heera Lal Yadav, the co-accused, on 03.07.2023. These facts were not known to father of the informant and he would have definitely opposed the sale of the house and hence the co-accused, Hanoj and Heera Lal Yadav, conspired with Kamla Devi, the applicant and after making him consume liquor caused his murder and threw his dead body on canal road.
4. Learned counsel for the applicant has submitted that the applicant has been falsely implicated in this case for causing offence of under section 120-B IPC. He has submitted that the allegation in FIR that the informant never knew that his father has got a house constructed in the name of the applicant 20 years ago is not credible. It is also not credible that son of deceased will not know about the extra marital affair of his father for 20 years. He has submitted that there is no reliable evidence against the applicant at this stage. Before the Investigating Officer, no evidence regarding the ownership of the alleged house was produced by the informant. The incriminating recovery of the weapons has been made on pointing out of co-accused, Hanoj, from the house of co-accused, Heera Lal Yadav. The applicant has been falsely implicated in this case. She has no criminal history to her credit and is languishing in jail since 31.07.2023.
5. Learned A.G.A. and learned counsel for informant have vehemently opposed the prayer for bail of the applicant counsel for informant has brought on record the hand written photocopy off the sale deed allegedly executed by applicant in favour of one Manoj Kumar Yadav on 03.07.2023. It has further been submitted that the dispute took place between the applicant and the deceased since the applicant took the entire amount of sale consideration herself and did not paid any amount to the deceased, who was real owner of the house. Hence, the applicant conspired with co-accused persons and committed the murder of the deceased. Applicant has confessed to the aforesaid effect before the Investigating Officer in her statement under section 161 Cr.P.C. It has further been submitted that sale deed of the land in dispute was got executed by the deceased in favour of the applicant on 17.02.2010 and on the basis of the same her name has been recorded in the Khatauni. The sale deed dated 17.02.2010 and Khatauni of 1428-1433 fasli have been brought on record by the informant by means of a supplementary affidavit. The sale deed dated 03.07.2023 has also been brought on record by means Annexure No. 2 of the short-counter affidavit. It has finally been submitted by learned counsel for informant that merely because the applicant is woman, she cannot be absolved of the offence of conspiracy committed by her alongwith co-accused. He has relied upon the judgment of the Apex Court in Criminal Appeal No. 1279 of 2021 in support of his submissions.
6. After hearing the rival contentions, this Court finds that the arguments of the counsel for informant on the first blush appear to be attractive, but on closer scrutiny it fails to convince the Court. There is allegation against the applicant that she is beneficiary of a house purchased in her name by the deceased, father of the informant namely, Indrajeet Yadav. The copy of sale-deed dated 17.02.2010 brought on record, shows that the same was executed by one Shankar Yadav in favour of Kamla Devi in the year 2010. Therefore, allegation that the deceased got the house in dispute purchased in the name of the applicant 20 years ago made in the FIR is not correct. The land in dispute is recorded in khatauni brought on record which shows that it is an agricultural land and not a constructed house or abadi. These evidence brought on record by way of counter-affidavits filed by the counsel for informant are not part of the case diary and have not been produced before Investigating Officer during investigation. The allegation that the informant never knew about the extra marital relationship of his deceased, father with the applicant for last 20 years is not credible. In the confessional statement of the applicant recorded by the police, she has admitted that the deceased used to live with her and also with his wife. In FIR, it is alleged that the applicant sold the land surreptitiously without knowledge of the deceased and usurped the entire sale consideration. Only to prevent the deceased from gaining the knowledge of the sale deed and the money received by the applicant, she got the deceased murdered with the help of co-accused in pursuance of a conspiracy. However, in the confessional statement of the applicant it has come that the deceased was aware of the sale deed and he was demanding money from the applicant and therefore she got him murdered. Clearly there is contradiction in the FIR and the confessional statement of the applicant. The ingredient for constituting offence under Section 120-B IPC is the proof agreement of commit an offence. Without proof of such an agreement, the allegation of criminal conspiracy cannot be proved.
7. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in 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, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-
(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.
8. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
9. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
10. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of two years."
4. Learned counsel for the applicant has submitted that the applicant is brother of co-accused noted above and he has been falsely implicated in this case on the basis of planted recovery of weapons. He had no motive or intention to get involved in this case. Learned counsel for applicant has submitted that co-accused, Kamla Devi, who had relationship with the deceased and she has already been enlarged on bail. The applicant is languishing in jail since 31.07.2023. The trial in the aforesaid case is not likely to be concluded in near future.
5. Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre-trial stage, therefore, she does not deserves any indulgence. In case the applicant is released on bail, she will again indulge in similar activities and will misuse the liberty of bail.
6. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in 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, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-
(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.
7. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
8. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
9. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year.
10. Registrar(Compliance) is directed to communicate this order to the concerned court below within ten days."
4. Learned counsel for the applicant submits that the role of the applicant is at par with co-accused, Hanoj, who has been granted bail by this Court vide Criminal Misc. Bail Application No. 48624 of 2023.
5. He has further submitted that the deceased was having relationship with sister of co-accused, Hanoj, namely, Kamla Devi, for last twenty years. The applicant had no concern with Hanoj or his sister, Kamla Devi, or the deceased. Incriminating recovery of weapons has been allegedly made from the house of the applicant, but there is no public witness of recovery as per section 27 of the Evidence Act.
6. Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre-trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
7. The point which requires consideration in this case is regarding recovery of weapon allegedly made on pointing out of the applicant. This Court finds that the manner and more of recovery is not in accordance with Section 27 of the Indian Evidence Act. The Apex Court in the case of Ramanand @ Nandlal Bharti Vs. State of U.P., AIR 2022 Supreme Court 5273 has considered the relevant law in paragraph nos. 66, 67 & 68 herein quoted herein below:-
"66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence."
34. The Apex Court in the same judgment has delineated the requirements of procedure for such recovery in paragraph no.53 which as follows:-
"53. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence along with his blood stained clothes then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
8. This Court finds that from the charge-sheet submitted in this case that investigating officer has not named any witness in the list of witnesses who was present at the time of recovery of the incriminating material from the house of the applicant. Therefore, at this stage it cannot be said conclusively that incriminating recovery was made from the house of the applicant. The sale deed executed by deceased, Indrajeet Yadav, with consent of co-accused, Kamla Devi, was in favour of Manoj Kumar Yadav son of Munni Lal Yadav and the applicant was not beneficiary of the same.
9. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in 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, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-
(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.
10. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
11. Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 14.05.2024
Abhishek
