Allahabad High Court

Awadhesh Gupta vs State Of U.P. on 2 April, 2025

Author: Rajeev Misra

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:45436
 
Court No. - 70
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7528 of 2025
 

 
Applicant :- Awadhesh Gupta
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ambreen Masroor,Sadrul Islam Jafri,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Harendra Prasad Yadav
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. N. I. Jafri, the learned Senior Counsel assisted by Mr. Gurfan Ahmad Khan Advocate holding brief of Mr. Sadrul Islam Jafri, the learned counsel for applicant and the learned A.G.A. for State-opposite paty-1.

2. Perused the record.

3. This repeat application for bail has been filed by applicant-Awadhesh Gupta seeking his enlargement on bail in Case Crime No. 197 of 2023 under Sections 302, 120-B, 34 I.P.C. and Police Station-Jahanganj, District-Azamgarh, during the pendency of trial i.e. Sessions Trial No. 580 of 2023 (State Vs. Awadhesh and others) under Sections 302, 120-B, 34 I.P.C., Police Station-Jahanganj, District-Azamgarh.

4. The first bail application of applicant was rejected by this Court by a detailed order dated 15.12.2023 passed in Criminal Misc. Bail Application No. 42552 of 2023 (Praveen Rai @ Dempal Vs. State of U.P.)., decided alongwith Criminal Misc. Bail Application No. 24655 of 2023 (Awadhesh Gupta Vs. State of U.P.). For ready reference, the order dated 15.12.2023 is reproduced herein-under:

"1. Heard Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Sandeep Kumar Rai, the learned counsel for applicant-Praveen Rai Alias Dimpal, Mr. Sanjay Kumar Yadav, the learned counsel for applicant-Awadhesh Gupta, the learned A.G.A. for State and Mr. Harendra Prasad Yadav, the learned counsel representing first informant.

2. Perused the record.

3. These applications for bail have been filed by applicants Praveen Rai Alias Dimpal and Awadhesh Gupta, seeking their enlargement on bail in Case Crime No. 0197 of 2023, under Sections 302, 120B, 34 IPC, P.S. Jahanaganj, District Azamgarh, during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 25.04.2023, a delayed F.I.R. dated 26.04.2023 was lodged by first informant Ram Narain (father of the deceased) and was registered as Case Crime No. 0197 of 2023, under Sections 302, 120B, 34 IPC, P.S. Jahanaganj, District Azamgarh. In the aforesaid F.I.R., an unknown person has been arraigned as solitary accused.

5. The prosecution story as unfolded in the F.I.R. is to the effect that son of the first informant who drove Auto Rickshaw bearing Registration No. UP 50 BT 8371 for his livelihood, did not return home even till late in the night. Thereafter, a search was conducted to locate the whereabouts of the missing son of first informant. Ultimately, the dead body of the deceased was found on the Kharanja road in village Karpiya Police Station Jahanaganj, where the deceased was lying dead (the son of the first informant) on the front seat of the aforesaid auto rickshaw.

6. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The dead body of the deceased was recovered by the police. Thereafter, inquest (Panchayatnama) of the body of the deceased was conducted on 26.4.2023. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was categorized as homicidal and the cause of death of deceased was said to be injuries inflicted upon the deceased by a sharp edged weapon. Subsequent to above, the post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased, found following ante mortem injuries on the body of deceased:-

1. Incised wound of size 17x4 cm x neck cavity deep in front of neck below chin 6 cm from left ear lobule, margin is clean trachea esophagus & larynx Right side blood vessel fully cut.

2. Stab wound of size 4 x 2 cm x chest cavity deep on the Rt. side front of chest 1 cm below the Rt. clavicle.

3. Incised wound 4 cm x 1 cm muscle deep on right palm 4 cm from right thumb tip.

4. Incised wound 3 cm x 1/2 cm muscle deep on the left tip of the 3 finger index middle ring finger.

5. Stab wound 3 cm x 2 cm x abdomen cavity deep. 13 cm from the umbilicus Rt side abdomen lower.

7. During course of investigation, Investigating Officer examined the first informant Ram Narain. However, no concrete material emerged in the statement of the first informant.

8. Investigating Officer, thereafter, examined one Kailash Chauhan owner of a studio under Section 161 Cr.P.C. This witness in his statement has stated that three persons namely Praveen Rai, Afzal and Sunil Gupta came together at his shop about 5-6 p.m. on 25.4.2003 i.e. day of occurrence. They also consumed liquor and ate non veg at the shop of this witness and thereafter went together. The said fact emanates from C.D. Parcha No. 2 at page 8 of the case diary. Prima-facie the evidence of last seen together has emerged against applicant and co-accused Afzal.

9. Thereafter, on 29.04.2023 the police informer gave an information regarding the occurrence. As per the disclosure made by the police informer, it appears that on account of drinking habit of deceased and land dispute between the deceased and Awadhesh Gupta (applicant herein), the deceased was got murdered. As such, the role of applicant Awadhesh Gupta surfaced as a conspirator in the crime in question. This fact is borne out from the G.D. entry of the concerned Police Station, copy of which is on record at page 44 of the bail application of applicant Awadhesh Gupta. In the light of above, Investigating Officer made following arrests:-

Applicant Praveen Rai @ Dimpal was arrested on 29.04.2023

Applicant Awadhesh Gupta was arrested on 29.04.2023

Afzal was arrested on 30.04.2023

10. From the person of applicant Praveen Rai @ Dimpal, Investigating Officer recovered a sum of Rs. 70,500/- cash and a mobile phone. On the pointing of this applicant 2 pants, 1 shirt and a T shirt of the applicant which had blood stains and hidden in the bushes were recovered. As per the explanation offered by the applicant some of the clothes belong to himself while some belong to co-accused Afzal. Furthermore, the motorcycle used in the commission of crime bearing Registration No. UP 50 BT 8371 was also recovered on the pointing of this applicant.

11. After the arrest of aforesaid accused, his statement was recorded, wherein he confessed his complicity in the crime in question. The role of causing assault by a sharp edged weapon i.e. knife upon deceased was assigned to co-accused Afzal, whereas the role of catching hold was assigned to this accused himself. The motive which has emerged behind the occurrence in question is said to be contract killing financed by applicant Awadhesh Gupta, which contract was settled at a sum of Rs. 3,00000/-.

12. Applicant Awadhesh Gupta was arrested on 29.04.2023, but no adverse material, which may point at his complicity in the crime in question either from his person or on his pointing out was recovered. However, applicant Awadhesh Gupta in his confessional statement has admitted that he gave Rs. 3,00,000/- to the accused i.e. Afzal and Praveen Rai @ Dimpal for causing the murder of the (deceased) Sunil Gupta, son of the first informant Ram Narain

13. Afzal whose complicity in the crime in question emerged in the inculpatory confessional statement of applicant Praveen Rai @ Dimpal was arrested on the next day i.e. 30.04.2023. From his person, a sum of Rs. 80,000/- cash was recovered. Apart from above, a country made .315 bore pistol, 3 blank cartridges of .315 bore, 1 live cartridge, 2 blank cartridges of 9 mm bore and a mobile phone were recovered. The statement of this accused was also recorded, wherein he confessed his complicity in the crime in question. This witness has confessed that the role of assault upon deceased by a knife (a sharp edged weapon) was committed by himself, whereas the role of catching hold was performed by co-accused Praveen Rai.

14. Apart from the statements of aforementioned witnesses examined under Section 161 Cr. P. C. as noted above, Investigating Officer also examined the widow of the deceased namely Sarita Devi, wherein this witness has categorically stated that there was enmity in between the applicant Awadesh Gupta and the deceased Sunil Gupta on account of the fact that applicant Awadesh Gupta was selling joint property, but had not parted with the joint share of the sale proceeds in favour of the deceased to the extent of his share.

15. In the light of above, the Investigating Officer collected the C.D.R. reports of the mobile phones of :-

(A) Sunil Gupta (deceased) Mobile No. 9628611230

(B). Afzal (accused) Mobile NO. 9044719844

(C). Praveen Rai @ Dimpal Mobile No. 8887555109

16. As per the aforesaid CDR Reports it was revealed that various calls were made from the mobile phone of Suneel Gupta to Praveen Rai. As per the CDR report of the mobile phone of Praveen Rai various calls were made to co-accused Afzal and Suneel Gupta (deceased). As per CDR report of accused Afzal various calls were made to Praveen Rai.

17. On the basis of above and other material collected by the Investigating Officer, he came to the conclusion that complicity of applicants and Afzal is established in the crime in question. He, accordingly, submitted the charge sheet dated 7.7.2023, whereby applicant Praveen Rai @ Dimpal, Awadhesh Gupta and Afzal have been charge sheeted under Sections 302, 120 B and 34 IPC.

18. Mr. V.P. Srivastava, the learned Senior Counsel for applicant Praveen Rai @ Dimpal contends that though applicant is a named and charge sheeted accused, yet he is liable to be enlarged on bail. Present case is a case of circumstantial evidence and therefore, there is no eye-witness of the occurrence. The complicity of an accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by the Apex Court in Shard Birdhichand Sarda Vs. State of Maharashtra, AIR 1084 SC 1622. However, upto this stage, none of the parameters laid down by the Apex Court in aforementioned judgement is satisfied against applicants.

19. The complicity of applicant-Praveen Rai @ Dimpal in the crime in question is sought to be alleged on the basis of following incriminating circumstances which have emerged against this applicant upto this stage i.e. (1) Recovery of Rs.70,500/- from the person of applicant (2) Recovery of blood soaked clothes of applicant and co-accused Afzal on the pointing of applicant from the bushes as well as the motorcycle bearing registration No. UP 50 B.T. 8371 which was used in the commission of crime and belongs to this applicant, (3) C.D.R. report dated 22.6.2023 pertaining to the mobile phone of applicant and (4) the confessional statement of applicant.

20. According to the learned counsel for applicants, the aforesaid incriminating circumstances are neither singularly nor cumulatively sufficient enough to infer the guilt of applicant in the crime in question. With reference to the pass book of applicant, photo copy of which is on record as Annexure 10 to the affidavit filed in support of the bail application of applicant Praveen Rai @ Dimpal, he submits that a sum of Rs. 1,60,219/- was credited in the Bank Account of applicant by the L.I.C. As such, applicant is the rightful owner of the amount recovered from the person of applicant.

21. In respect of the recovery of the blood soaked clothes of applicant and co-accused Afzal and the motorcycle alleged to have been used in the commission of the crime, the learned counsel for applicant contends that the said recovery is false. It is implanted. The recovery was made on 29.04.2023 i.e. after 4 days of the occurrence and from an open place. There is no independent witness of the alleged recovery. As such, the same cannot be relied upon. Moreover, the blood soaked clothes of the applicant and co-accused Afzal have not been sent to the F.S.L. Laboratory for chemical examination. Therefore, upto this stage, it cannot be conclusively said as to whether the blood found on the clothes of applicant and co-accused Afzal is human blood or animal blood or whether it tallies with the blood group of deceased.

22. The C.D.R. report dated 22.6.2023 pertaining to the mobile phone of this applicant is by itself not so sufficient a circumstance so as to infer the guilt of applicant in the crime in question.

23. Learned Senior Counsel for applicant further submits that confession made by an accused while in custody is not admissible against accused. Moreover, confession by itself is a very weak type of evidence and can be relied upon only when there is corroboration of the same. As the confession made by the applicant remains uncorroborated, with any material on record, therefore, no guilt of the applicant qua the crime in question can be inferred, on the basis of confession made by applicant.

24. According to the learned Senior Counsel for applicant no strong motive has merged against applicant for committing the crime in question. Since motive plays an important link in the chain of circumstances in a case based upon circumstantial evidence, which is not prima facie established against applicant, therefore, it cannot be said that there was a strong motive with the applicant to commit the crime in question.

25. In the submission of the learned Senior Counsel for applicant since there is no previous enmity with the applicant and the deceased, therefore, no animus can be attached to the applicant for committing the crime in question.

26. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 29.04.2023. As such, he has undergone more than 6 1/2 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 by the prosecution against applicant now stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He thus 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.

27. Mr. Sanjay Kumar Yadav, the learned counsel for applicant Awadhesh Gupta submits that this applicant like Praveen Rai @ Dimpal is also a named and charge sheeted accused, yet he is liable to be enlarged on bail. He has substantially adopted the arguments raised by the learned Senior Counsel for applicant Praveen Rai @ Dimpal. She submits that complicity of applicant has emerged in the crime in question as per the confessional statement of accused Praveen Rai @ Dimpal. However, the complicity of applicant in the crime in question cannot be conclusively concluded on the basis of the aforesaid incriminating circumstance. According to the learned counsel for applicant, the confession made by an accused while in police custody is by itself not admissible in evidence by virtue of provisions contained in Section 25 of the Evidence Act. Secondly, the C.D.R. report pertaining to the mobile phone of this applicant and relied upon by the prosecution is by itself not such a clinching piece of evidence so as to infer the guilt of applicant. No CDR report of the mobile phone of the applicant was collected. He thus contends that applicant is liable to be enlarged on bail. Apart from above applicant is alleged to be the conspirator of the crime. It is by now well settled that conspiracy is a closed door affair and therefore subject to trial evidence.

28. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 29.04.2023. As such, he has undergone more than 6 and a half 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 by the prosecution against applicant now stands crystallized. However, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. He thus contends 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.

29. Per contra, the learned A.G.A. and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since applicants are named and charge sheeted accused, therefore, they do not deserve any indulgence by this Court. The complicity of applicants in the crime in question stands fully established in the crime in question as per the incriminating circumstances that have emerged against applicants during the course of investigation as already mentioned above.

30. In respect of the recovery of Rs.70,500/- from the person of applicant Praveen Rai @ Dimpal, the learned A.G.A. contends that same is part of the contract amount (Rs. 3,00,000/-) given by co-accused Awadhesh Gupta for committing the murder of deceased. From perusal of the pass book of Bank Account of applicant Praveen Rai @ Dimpal it is apparent that this applicant had already paid a sum of Rs. 1,40,000/- (out of Rs. 1,60,219/-) received from L.I.C. to one Baniraj Chauhan on 10.1.20223). The affidavit filed in support of the bail application of applicant Praveen Rai @ Dimpal runs into as many as 24 paragraphs but the said fact remains unexplained. As such, prima facie, applicant Praveen Rai cannot be said to be the rightful owner of the money recovered from his person.

31. According to the learned A.G.A. recovery of blood stained clothes of the applicant and that of co-accused Afzal on the pointing of applicant Praveen Rai and Afzal is a clinching circumstance regarding complicity of applicant-Praveen Rai @ Dimpal in the crime in question. No explanation could be offered by the applicant himself as to how his clothes and that of co-accused Afzal were having blood stains and why these were lying hidden in the bushes. Similar is the situation in respect of the motorcycle of the applicant which was also recovered from an open place.

32. Learned A.G.A. has then submitted that the CDR reports of the accused Praveen Rai @ Dimpal and Afzal and the deceased clearly show that they were in regular and constant conversation with each other. The aforesaid fact gains importance in the light of the fact that all the three accused were seen together at the shop of Kailash Chauhan owner of studio. The same is an important link in the chain of circumstances to infer the guilt of applicant in the crime in question.

33. With regard to the confessional statement of accused the learned A.G.A. submits that confession made by an accused while in custody is a weak type of evidence but can be relied upon provided there is corroboration. The confession made by the accused stands clearly corroborated by the fact that as per the statement of the widow of deceased charge sheeted accused Awadhesh Gupta had enmity with the deceased on account of the fact that applicant Awadhesh Gupta was selling joint property but had not parted with the share of the sale proceeds in favour of the deceased to the extent of his share. It is this applicant who hatched the entire conspiracy with accused Praveen Rai @ Dimal and Afzal inasmuch as, accused Praveen Rai @ Dimpal and Afzal had neither any pre-existing enmity with the deceased as such, there can be no animus with them to commit the crime in question. The motive to commit the crime in question that has emerged is on account of the contract offered by the accused Awadhesh Gupta to the other co-accused for the murder of deceased.

34. On the above conspectus, the learned A.G.A. contends that the complicity of applicants in the crime in question prima-facie stands fully established. As such, no sympathy be shown by this Court in favour of applicants. He, therefore, submits that present applications for bail are liable to be rejected.

35. When confronted with above, the learned counsel for applicants could not overcome the same.

36. Having heard, Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Sandeep Kumar Rai, the learned counsel for applicant-Praveen Rai Alias Dimpal, Mr. Sanjay Kumar Yadav, the learned counsel for applicant-Awadhesh Gupta, the learned A.G.A. for State, Mr. Harendra Prasad Yadav, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that though present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence yet the incriminating circumstances which have emerged against the applicants as noted above, prima-facie point at the guilt of applicants in the crime in question, the learned counsel for applicants could not dislodge the said incriminating circumstances with reference to the material on record, therefore, irrespective of the varied submissions urged by the learned counsel for applicants in support of these applications for bail, but without making any comment on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicants on bail.

37. As a result, these applications for bail fail and are liable to be rejected.

38. They are, accordingly, rejected.

Order Date :- 15.12.2023 "

5. Present application came up for admission on 06.03.2025 and this Court passed the following order:

"1. Heard Mr. N.I. Jafri, the learned Senior Counsel assisted by Mr. Sadrul Islam Jafri, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Harendra Prasad Yadav, the learned counsel representing first informant opposite party-2.

2. Perused the record.

3. This repeat application for bail has been filed by applicant- Awadhesh Gupta, seeking his enlargement on bail in Case Crime No. 197 of 2023, under Sections 302, 120-B, 34 I.P.C., Police Station-Jahanaganj, District-Azamgarh, during the pendency of trial i.e. Sessions Trial No. 580 of 2023 (State Vs. Awadhesh Gupta) now pending in the Court of Sessions Judge, Azamgarh.

4. Principal argument raised by the learned Senior Counsel for applicant in support of this repeat application for bail is that inspite of the fact that a period of almost 17 months has rolled by from the date of framing of charge order passed by Court below not a single witness including the first informant has deposed before Court below. He therefore, submits that on account of lackadaisical approach of prosecution in pursuing the trial, the right of accused applicant to have speedy trial stands infringed. To lend legal support to his submission he has relied upon the judgment of Supreme Court in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225. On the above premise, the learned Senior counsel for applicant contends that since an accused also has a fundamental right to speedy trial, which right stands infringed in the present case. Applicant is in jail, he therefore cannot be held responsible for the delay in the progress of trial. As such, applicant is liable to be enlarged on bail.

5. Per contra, the learned A.G.A. for State and the learned counsel representing first informant opposite party-2 have vehemently opposed the prayer for repeat application for bail. Attention of the Court was invited to the photocopy of the order sheet of aforementioned Sessions Trial which has brought on record and is at page 92 onwards. With reference to above, it is submitted by the learned A.G.A. that first informant Ram Narain has appeared before Court below on various dates but irrespective of above, the Court has refused to record his depositions and has passed routine order regarding summoning of witnesses. He, therefore, submits that the Presiding Officer conducting the trial is himself for the irresponsible manner in which the trial has been conducted.

6. In view of above, let a report be submitted by the concerned Presiding Officer to this Court explaining the circumstances as to why even the witness appeared before Court below his presence was not recorded and inspite of above, his deposition was not recorded.

7. The necessary report shall be submitted to this Court on or before 01.04.2025

8. Matter shall re-appear as fresh on 02.04.2025.

Order Date :- 6.3.2025 "

6. In compliance of above order, the learned A.G.A. has received instruction.

7. The learned Senior Counsel for applicant has reiterated the submission as was already been submitted on 06.03.2025. On the above premise, it thus urged by the learned Senior Counsel that applicant is liable to be enlarged on bail. Present case is a case of circumstantial evidence and as per circumstances that have emerged on record upto this stage, no definite conclusion can be drawn with regard to guilt of accused/applicant. Applicant is in jail since 19.04.2023, As such, he has undergone more than 1 year and 11 months of incarceration.

8. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged by the learned senior counsel for applicant 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.

9. Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed this repeat application for bail. Learned A.G.A. submits that since applicant is a charge sheeted accused, therefore, he does deserve any indulgence by this Court. As per instructions received, it was submitted by the learned A.G.A. that P.W.-1, the first informant has deposed before court below and his deposition is being recorded before court below. On the above premise, the learned A.G.A. submits that it cannot be said that there is lackadaisical approach on the part of of the prosecution in pursuing the trial. Considering the nature and gravity of offence and also the period of punishment provided for the offence complained of, the period of incarceration undergone by applicant is by itself not so sufficient a circumstance so as to enlarge the applicant on bail. On the above conspectus, the learned A.G.A. submits that since no new, good or sufficient ground has emerged on record therefore present repeat application for bail is liable to be dismissed by this Court.

10. When confronted with above, the learned counsel for applicant has rejoined the submissions urged by him in support of this repeat application for bail. However, he could not dislodged the factual and legal submissions urged by the learned A.G.A. in opposition to this repeat application for bail.

11. Having heard the learned senior counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition to this repeat application for bail as noted herein above are not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage, therefore irrespective of the varied submissions urged by the learned senior counsel for applicant in support of present repeat application for bail but without making any comment on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the applicant on bail.

12. As a result, present repeat application for bail fails and is liable to be rejected.

13. It is accordingly rejected.

Order Date :- 2.4.2025