Uttarakhand High Court
Suraj vs State Of Uttarakhand on 14 July, 2022
HIGH COURT OF UTTARAKHAND AT NAINITAL
First Bail Application No. 2232 of 2020
Suraj ........Applicant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. R.S. Sammal, Advocate for the applicant.
Mr. Lalit Miglani, A.G.A. assisted for the State.
Hon'ble Ravindra Maithani, J. (Oral)
Applicant Suraj is in judicial custody in FIR
No.0024 of 2020, under Section 302 IPC, & Section 4/25
of the Arms Act, 1959, Police Station- Kichha, District
Udham Singh Nagar. He has sought his release on bail.
2. Heard learned counsel for the parties and
perused the record.
3. The applicant told it to the police that he had
killed the deceased Vikas with a knife. He had knife in his
hand. Having received this information, Sub-Inspector
Babita Goswami, who has been examined at the trial as
PW1 kept the knife in the police station itself and visited
the place of occurrence along with the applicant. There,
the deceased could reveal his name. Thereafter, the
deceased was taken to the hospital by Ajeet, son of Nanhe
Lal and others. The applicant told it to the police that
since the family member of the deceased had killed his
father to revenge the death of his father, he killed the
deceased Vikas. This FIR was lodged, chargesheet
submitted and the trial is underway.
4. Learned counsel for the applicant would
submit that the case against the applicant is not based on
any legally admissible evidence. He would submit that the
FIR is based on confessional statement, which cannot be
read in evidence against the applicant.
5. Reference has been made to the judgment in
the case of Aghnoo Nagesia Vs. State of Bihar AIR 1966
Supreme Court 119. In the case of Aghnoo Nagesia
(supra), the Hon'ble Supreme Court observed that "If
proof of the confession is excluded by any provision of
law such as Section 24, Section 25 and Section 26 of
the Evidence Act, the entire confessional statement
in all its parts including the admissions of minor
incriminating facts must also be excluded, unless
proof of it is permitted by some other section such as
Section 27 of the Evidence Act."
6. Learned counsel for the applicant would also
submit that the confessional statement of the applicant
recorded under Section 164 of the Code of Criminal
Procedure, 1973 is also not reliable because it was
recorded on the date when he was apprehended without
having been given any time for reflection, as required,
before recording such statement.
7. Learned counsel for the applicant has also
referred to the inquest report prepared by the police,
which records that the FIR has been belied by the
averments of the inquest report because according to it,
the deceased was brought to the hospital by Ajeet Kumar.
It is argued that had the police Sub- Inspector Babita
Goswami reached at the place of incident or at the
hospital, the doctor would have no occasion to write that
the deceased was brought by Ajeet Kumar and in such
circumstances, he was not required to send a memo to
the police officer.
8. Learned counsel for the applicant would also
submit that, in fact, subsequent to it, on the next date, an
FIR was lodged by the wife of the deceased that the
deceased was killed by the applicant and others. It is
argued that had the wife of deceased saw the incident,
she would have revealed it at the time of inquest because
she is also one of the witnesses of the inquest.
9. On the other hand, learned State Counsel
would submit that the applicant was seen in the CCTV
footage following the deceased. A witness Mool Chandra
Rathore has stated about it; the forensic report supports
the prosecution case; the knife was recovered at the
instance of the applicant; It is he, who delivered the knife
to the police.
10. PW1 Sub-Inspector Babita Goswami has also
been examined at the trial. According to her, on the date
of incident, it is the applicant, who reached at the police
station and told the police that he killed the deceased
Vikas with the knife, which he was holding then and,
thereafter, she visited the place of incident.
11. It is true that confession made before police
cannot be read against its maker. But Section 27 of the
Indian Evidence Act, 1872, makes an exception to it. And
when any fact is discovered consequent to the information
received from a person accused of any offence, in the
custody of a police-officer, so much of such information,
whether it amounts to a confession or not, as relates
distinctly to the fact thereby discovered, may be proved.
12. According to the prosecution case, the knife
was given by the applicant saying that he killed the
deceased by that knife. How much of this statement
would be read into evidence, it is the matter of scrutiny at
the trial.
13. It is true that in the inquest report, it is
recorded that the deceased was brought to the hospital by
Ajeet, son of Nanhe Lal. But this is what is stated in the
FIR also. The FIR does not record that the police took the
deceased to hospital. According to it, Ajeet, son of Nanhe
Lal and others, took the deceased to hospital. The knife
was also sent for the forensic examination along with the
clothes worn by the deceased and the applicant. It
connects the applicant with the offence.
14. A report was subsequently given by Asha Devi
to police, naming more than one person for killing his
husband. But the fact remains that the chargesheet has
been submitted against the applicant only. The report
given by the wife of the deceased would also fall for
scrutiny during trial. There has been a motive; there have
been recovery of articles; there is Forensic Report, which
connects the applicant with the incident.
15. Having considered all the facts and
circumstances, this Court is of the view that there is no
reason to grant bail to the applicant at this stage. The
instant bail application deserves to be rejected.
16. The bail application is accordingly rejected.
(Ravindra Maithani, J.)
14.07.2022
Ravi Bisht
