Allahabad High Court

Ritesh Yadav vs State Of U.P. Thru. Addl. Chief Secy. ... on 9 April, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2025:AHC-LKO:20101
 

 
Court No. - 15
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6825 of 2024
 

 
Applicant :- Ritesh Yadav
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko.
 
Counsel for Applicant :- Archana Rawat,Diwakar Pratap
 
Counsel for Opposite Party :- G.A.,Rina Pandey,Sanjay Shankar Pandey
 

 
Hon'ble Subhash Vidyarthi J.

1. Heard Ms. Archana Rawat, the learned counsel for the applicant, Sri Jayant Singh Tomar, learned Additional Government Advocate-I for the State, Shri Sanjay Shankar Pandey, learned counsel for the informant-complainant, and perused the records.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 063 of 2024, under Section 302/34 I.P.C. registered at Police Station Cantt., District Ayodhya.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 26.02.2024 at 04:58 hours, stating that the informant was told by some unnamed villagers in the night of 26.02.2024 at 12:30 hours that his 25 years' old son had met with an accident near house of Ram Karan Yadav. The injured was taken to a hospital where the doctor told that he had died due to gun-shot injury.

4. The post-mortem examination report mentions lacerated entry wounds on back of chest, waist, as well as left arm and lacerated exit wound on left arm. The cause of death has been opined to be shock and hemorrhage as a result of ante-mortem firearm injuries.

5. In the statement of the informant recorded under Section 161 Cr.P.C., he reiterated the F.I.R. version.

6. On 01.03.2024, the investigating officer recorded statement of one Sunil Yadav, who stated that co accused Rajeev Yadav and the applicant Ritesh Yadav had come to him and they had told that they had killed Vishal Yadav. They had stated that the police was suspecting their involvement in commission of the offence and was searching for them and they had requested the said witness to save them. The police claimed that on the basis of aforesaid information, when the police party apprehended the applicant and co-accused Rajeev Yadav, the accused persons fired gun-shots towards the police personnel, but no police person received any injury in the incident. The applicant suffered a gun-shot injury on his leg due to retaliatory firing.

7. In his custodial confessional statement recorded in that case, the applicant confessed to his involvement with the co-accused Rajeev Yadav also in the present case.

8. In para-7 of the rejoinder affidavit filed on behalf of the applicant, the applicant's involvement in two other criminal cases, Case Crime No. 78/2022 and Case Crime 67/2024 has been mentioned, in both of which he has been enlarged on bail.

9. The learned Counsel for the applicant submitted that apart from the custodial confessional statement of the applicant, there is no other material to connect the applicant with commission of the alleged offence.

10. Sri. Jayant Singh Tomar, the learned A.G.A.-I opposed the bail application and he has submitted that the applicant's involvement in commission of the offence has been established during investigation and a charge-sheet has been submitted against him. However, he could not dispute the submission of the learned Counsel for the applicant that the only material against the applicant is the applicant's custodial confessional statement.

11. Sri Sanjay Shankar Pandey, learned counsel for the informant, has vehemently opposed the bail application and he submitted that the deceased had given a dying-declaration implicating the applicant. As per him, the dying-declaration can be inferred from statement of the informant's son Santosh Yadav recorded by the investigating officer, which has been annexed along with the bail application as well as along with the counter affidavit filed by the State. He stated that Sandeep Yadav, son of Chandradev Yadav had telephonically informed Vinod Yadav that Vishal Yadav had met with an accident. This witness further stated that this information had been given to Vinod Yadav by Naveen Gaur by making a phone call. In spite of a query made by the Court to the learned counsel for the informant to explain this discrepancy in the statement as to whether the information of the incident was given to Vinod Yadav by Sandeep Yadav or Naveen Gaur, the learned counsel for the informant could not give any reply. Santosh Yadav further stated that upon receipt of this information, he had gone to the spot along with his brother Akash and father Ram Bali Yadav (the informant) and found his brother lying there. Santosh Yadav took him to the district hospital where the doctor told that the victim had died due to gun-shot injury. Thereafter, the FIR was lodged.

12. Santosh Yadav further stated that his father was involved in business of land with the applicant. His brother Vishal Yadav also used to accompany his father Rambali Yadav (the informant). Rambali Yadav and the applicant had entered into an agreement regarding land of Smt. Poonam Devi in the year 2021 which was subject to a family litigation. The litigation was decided in favour of Smt. Poonam Devi in the month of January. Meanwhile, price of the land had increased and the applicant wanted to get a sale-deed executed in his own favour, which was opposed by Vishal Yadav. Vishal Yadav had told his brother Santosh Yadav that the applicant had threatened him but Santosh Yadav had not given any importance to this information.

13. The learned counsel for the informant has stated that the aforesaid statement of Santosh Yadav wherein he stated that the deceased had informed him that the applicant had threatened him, amounts to his dying-declaration.

14. The statutory provision regarding dying declarations is contained in Section 32(1) of the Evidence Act, which reads as follows: -

"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:--

(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."

15. In reply to the Court's query that the statement of Santosh Yadav does not make a mention as to when such a statement had been made by the deceased and whether the statement which was not made in close proximity of the death of the victim or while he was apprehending his death, can be treated to be his dying declaration, the learned Counsel for the informant submitted that the law in this regard had been settled in the case of Pakala Narain Swamy. However, he did not provide a copy of the judgment relied upon by him and he even could not give citation of the judgment.

16. Sri. Arun Sinha has provided citation of the judgment relied upon by Sri. Shanjay Shankar Pandey, which is "Pakala Narayana Swami Vs. Emperor: (1939) 41 BomLR 428". The facts of Pakala Narayana Swami were that on March 20, 1937, the deceased man had received an unsigned letter inviting him to come that day or next day to Berhampur. The widow of the deceased said that on that day her husband had showed her a letter and said that he was going to Berhampur as the appellant's wife had written to him and told him to go and receive payment of his due. The deceased left his house on Sunday, March 21, in time to catch the train for Berhampur. On Tuesday, March 23, his body was found in the train at Puri. The admission of this statement of the deceased's wife was challenged in appeal. The first question framed by the Court was whether the statement of the widow, that on March 20 the deceased had told her that he was going to Berhampur as the accused's wife had written and told him to go and receive payment of his dues, was admissible under Section 32(1) of the Indian Evidence Act, 1872. The Bombay High Court held that: -

"The statement may be made before the cause of death has arisen, or before the deceased has any reason to anticipate being killed. The circumstances must be circumstances of the transaction: general expressions indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. But statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him would each of them be circumstances of the transaction, and would be so whether the person was unknown, or was not the person accused. Such a statement might indeed be exculpatory of the person accused. "Circumstances of the transaction" is a phrase, no doubt, that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant; facts. It is on the other hand narrower than "res gest". Circumstances must have some proximate relation to the actual occurrence : though as for instance in a case of prolonged poisoning they may be related to dates at a considerable distance from the date of the actual fatal dose."

(Emphasis added)

17. In Irfan v. State of U.P., 2023 SCC OnLine SC 1060, the Hon'ble Supreme Court has considered the law relating to dying declarations and has referred to numerous precedents on the point. The Hon'ble Supreme Court has drawn the following conclusions:-

"62. There is no hard and fast rule for determining when a dying declaration should be accepted; the duty of the Court is to decide this question in the facts and surrounding circumstances of the case and be fully convinced of the truthfulness of the same. Certain factors below reproduced can be considered to determine the same, however, they will only affect the weight of the dying declaration and not its admissibility:--

(i) Whether the person making the statement was in expectation of death?

(ii) Whether the dying declaration was made at the earliest opportunity? "Rule of First Opportunity"

(iii) Whether there is any reasonable suspicion to believe the dying declaration was put in the mouth of the dying person?

(iv) Whether the dying declaration was a product of prompting, tutoring or leading at the instance of police or any interested party?

(v) Whether the statement was not recorded properly?

(vi) Whether, the dying declarant had opportunity to clearly observe the incident?

(vii) Whether, the dying declaration has been consistent throughout?

(viii) Whether, the dying declaration in itself is a manifestation/fiction of the dying person's imagination of what he thinks transpired?

(ix) Whether, the dying declaration was itself voluntary?

(x) In case of multiple dying declarations, whether, the first one inspires truth and consistent with the other dying declaration?

(xi) Whether, as per the injuries, it would have been impossible for the deceased to make a dying declaration?

63. It is the duty of the prosecution to establish the charge against the accused beyond the reasonable doubt. The benefit of doubt must always go in favour of the accused. It is true that dying declaration is a substantive piece of evidence to be relied on provided it is proved that the same was voluntary and truthful and the victim was in a fit state of mind. It is just not enough for the court to say that the dying declaration is reliable as the accused is named in the dying declaration as the assailant.

64. It is unsafe to record the conviction on the basis of a dying declaration alone in the cases where suspicion, like the case on hand is raised, as regards the correctness of the dying declaration. In such cases, the Court may have to look for some corroborative evidence by treating the dying declaration only as a piece of evidence. The evidence and material available on record must be properly weighed in each case to arrive at an appropriate conclusion..."

(Emphasis added)

18. When we examine the facts of the present case in light of the law laid down by the Hon'ble Supreme Court in view of the aforesaid law laid down by the Hon'ble Supreme Court, what comes to light is that the statement of Santosh Yadav that the deceased Vishal Yadav had told him that the applicant had threatened him but Santosh Yadav had not given any importance to this information, does not disclose as to when was the threat extended by the applicant and when had the deceased told it to Santosh Yadav. Although the threat had been extended by the applicant, but the threat was not to kill Vishal Yadav. Even after coming to know about the threat, Santosh Yadav himself had not given any importance to it. These facts adversely affect the weight of the so called dying declaration.

19. The questions regarding admissibility, relevancy and weight of the evidence would be better left to be dealt with by the trial Court, but since submissions have been advanced by the learned Counsel for the informant on these points, merely this much is being observed that for the purpose of deciding the bail application, it is relevant to be noted that witness Santosh Yadav is the brother of the deceased and informant's son. He has stated in his statement recorded that he had reached the spot of occurrence along with his father. The FIR was lodged by his father afterwards. This witness did not disclose the fact that the deceased was threatened by the applicant prior to lodging of the FIR and this fact has been disclosed for the first time while recording his statement under Section 161 Cr.P.C.

20. Therefore, I am of the considered view that the statement of Santosh Yadav recorded under Section 161 Cr.P.C. does not make out a case for rejection of the bail application of the applicant.

21. The learned counsel for the informant further submitted that the accused persons are threatening the witnesses of the present case and in this regard FIR No.0070 of 2025 has been lodged in Police Station Pura Kalander, District Ayodhya under Sections 351(3) B.N.S. alleging that a witness in the present case, Suneel Yadav received a phone call on 09.01.2025 from some unknown person who introduced himself as Ritesh who threatened the said person not to give evidence in the matter. The Telephone call is said to have been received on 09.01.2025, whereas the FIR has been lodged on 09.02.2025. The exact conversation that took place in that phone call has not been reproduced in the F.I.R. Therefore, I am of the considered view that lodging of the aforesaid FIR a month after receipt of the alleged phone call, does not make any difference while considering the bail application of the applicant.

22. Having considered all the aforesaid facts and circumstances of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime. However, it is clarified that the observations made in this order would not affect the outcome of the trial.

23. Co-accused- Rajeev Yadav has been granted bail by this Court by means of an order passed today in Criminal Misc. Bail Application No.8027 of 2024.

24. Let the applicant- Ritesh Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions: -