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2009 DIGILAW 2619 (ALL)

Bharat Singh v. State of U. P.

2009-07-21

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. In both these applications, prayer for bail has been made on behalf of the applicants Bharat Singh s/o Charan Singh and Rakesh s/o Ram Kumar, who are facing trial in S.T. No. 399 of 2008 arising out of case crime no. 793 of 2008, under sections 364, 302, 201 IPC, P.S. Mandi Dhanora, District J.P. Nagar. Since both the bail applications pertain to the same case, hence for the sake of convenience, these applications are being disposed of by this common order. Papers are being referred in this order from the record of Crl. Misc. Bail Application No. 30301 of 2008. 2. The complainant Banwari Singh s/o Sita Ram Saini, r/o village Pathar Kuti, P.S. Dhanora (J.P. Nagar), filed a written report on 07.06.2008 at P.S. Mandi Dhanora, in which it was alleged that his son Parveen, aged about 18 years, had gone on 28.05.2008 with Lokendra s/o Bharat Singh to Dhanora. In the way Bharat s/o Charan Singh also met them. On the same day Bharat informed that Parveen has given his mobile to him. Next day, Smt. Jaswanti Devi, wife of the complainant, brought the mobile from Bharat. When the son of the complainant did not come back, search for him was made, but in vain. On the basis of this information, gumsudagi report was lodged at P.S. Dhanora Mandi on 07.06.2008 in GD No. 39 at 5.10 p.m. Further case of prosecution is that murder of Parveen was committed by the accused Lokendra, Bharat, Pappu and Rakesh and his dead body was thrown in the jungle behind Chandi Devi Mandir, Haridwar, from where the bones of the dead body and wearing clothes of deceased were recovered on 10.06.2008 on the pointing out of the applicants Rakesh, Bharat and co-accused Lokendra. 3. I have heard lengthy arguments of Sri Rupak Chaubey, Advocate, appearing for the applicants, Sri V.P. Mishra Advocate representing the complainant and AGA for the State. 4. It was submitted by learned counsel for the applicants that there is no legal evidence against the applicants and they have been falsely roped in this case by showing false recovery of bones on their pointing out from the jungle behind Chandi Devi Mandir, Haridwar. It was also submitted in this context by learned counsel that there is no evidence to show that the recovered bones are of the dead body of the deceased. It was also submitted in this context by learned counsel that there is no evidence to show that the recovered bones are of the dead body of the deceased. 5. It was further submitted by learned counsel that the deceased Parveen was not carried by the applicants from his house and false story of carrying the deceased by the applicants has been concocted. 6. Regarding the statement of the witnesses about carrying the deceased by all the four accused persons, it was submitted by learned counsel that if the deceased was carried by all the four accused persons from his house as stated by the witnesses, then this fact ought to have been mentioned in the gumsudagi report, whereas in gumsudagi report, it is only averred that the deceased Parveen had gone from his house with Lokendra and in the rasta, Bharat is said to have met them. 7. Regarding recovery of admission card of 2007 examination from the packet of deceased, it was submitted by learned counsel that this admission card has been planted, because after appearing in the examination of 2007, there was no justification for the deceased to keep the admission card of 2007 in his pocket. 8. Next submission made by learned counsel was that at the time of inquest proceedings, no independent witness of Haridwar was called and only interested witnesses have signed the inquest report, which makes the recovery of bones etc. doubtful. It was also submitted in this context that even no police personnel of Haridwar district was taken to make the recovery of dead body of deceased and police of district J.P. Nagar only is alleged to have make recovery of the bones etc. from the jungle behind Chandi Devi Mandir, Haridwar. 9. It was further submitted by learned counsel that the bones of dead body which are said to have recovered on the pointing out of the applicants were not identifiable and clothes also were not matching from the wearing clothes as mentioned in the gumsudagi report and hence, on this basis, identity of the deceased is not established. 10. 9. It was further submitted by learned counsel that the bones of dead body which are said to have recovered on the pointing out of the applicants were not identifiable and clothes also were not matching from the wearing clothes as mentioned in the gumsudagi report and hence, on this basis, identity of the deceased is not established. 10. Last submission made by learned counsel is that the applicants are languishing in jail since 10.06.2008 and hence on the basis of the long detention period in jail, they are entitled to be released on bail, because due to delay in trial fundamental right of speedy trial envisaged in Article 21 of the Constitution is being violated. 11. Bail application was vehemently opposed by learned AGA and counsel of the complainant contending that after carrying the deceased Parveen from his house, the accused persons including the applicants committed his murder and threw his dead body in the jungle behind Chandi Devi Mandir, Haridewar and on the pointing out of the applicants and co-accused Lokendra, the bones and clothes of the deceased were recovered from there and on the basis of recovered clothes and admission card, the identity of the deceased is established, because the clothes (pant and shirt) of recovered skeleton were identified by the complainant Banwari Singh and his brother Charan Singh at the time of recovery. 12. I have carefully gone through the entire case diary and other material on record. There is sufficient prima facie evidence in the case diary to show that after carrying the deceased Parveen from the house on 28.05.2008, his murder was committed by the accused persons including the applicants and his dead body was thrown in the jungle behind Chandi Devi Mandir Haridewar, where skeleton of bones with wearing pant and shirt was recovered by the police in presence of complainant and other witnesses on the pointing out of the applicants and co-accused Lokendra on 10.06.2008. There is also prima facie evidence to shows that admission card of 2007 Examination of deceased Parveen was kept in the pocket of pant, which was found on the skeleton and pant and shirt of deceased were also identified by the complainant. Therefore, having taken into consideration all these facts and entire evidence available in the case diary, without expressing any opinion on merit, in this heinous crime, both the applicants do not deserve bail. 13. Therefore, having taken into consideration all these facts and entire evidence available in the case diary, without expressing any opinion on merit, in this heinous crime, both the applicants do not deserve bail. 13. In my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 14. Consequently, the bail application of the applicants Bharat Singh and Rakesh are hereby rejected. 15. The trial court concerned is directed to conclude the trial of the applicant and other accused persons within six months making sincere efforts and avoiding unnecessary adjournments. 16. SSP J.P. Nagar also is directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the court concerned and it must be ensured that witnesses are produced in S.T. No. 399 of 2008 without causing any delay. 17. The office is directed to send a copy of this order within a week to the trial court and SSP concerned for necessary action.