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2009 DIGILAW 3828 (ALL)

Suresh Athwani v. State of U. P.

2009-12-18

RAVINDRA SINGH

body2009
JUDGMENT: Ravindra Singh, J. Heard Sri Satish Trivedi, Senior Advocate, assisted by Sri A.K. Pandey and Sri Shesh Nath Yadav, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Vinay Saran, learned counsel for the complainant and perused the record. This bail application has been moved by the applicant Suresh Athwani with a prayer that he may be released on bail in case crime No. 747 of 2008 under sections 302, 34 IPC, P.S. Sigra, District Varanasi. 2. The facts, in brief, of this case are that the FIR of this case has been lodged by Devendra Kumar Dodwani on 30.11.2008 at 11.30.30 P.M. in respect of incident which had occurred on 30.11.2008 at about 10.30 P.M., the distance of the police station concerned was about three kilometres from the alleged place of occurrence. The applicant and co-accused Kailash Atwani, Jitendra Pamnani @ Jittu and Gyan Pamnani @ Dabbu are named in the FIR as accused. It is alleged that in the said incident Smt. Neeta Dudwani has been killed. It is alleged that the first informant got an information on 30.11.2008 at about 11.00 P.M. that some casualty has taken place at his house, the first informant left the marriage ceremony and came to his house, he saw the crowd gathered at the gate of his house, he came to know that his wife has been killed. The dead body of the deceased was lying in the first floor in front of the kitchen in courtyard. Her neck was cut, she was in a pool of the blood. One Rupesh, the son of the first informant apprised that at 10.30 P.M. as he reached on the main gate of the house, the co-accused Kailash Atwani and applicant Suresh Athwani, co-accused Jitendra Pamnani @ Jittu and Gyan Pamnani @ Dabbu were coming out from the house of deceased and they ran away. At that time their clothes were blood stained. The co-accused Jittu and Dabbu were having the blood stained sharp edge weapons. They had committed the murder of the deceased because about two months prior the alleged incident they have opened the window towards the park to the mohalla, it was opposed by the family members of the deceased, case was registered against them due to which they were having the enmity with the family members of the first informant. They had committed the murder of the deceased because about two months prior the alleged incident they have opened the window towards the park to the mohalla, it was opposed by the family members of the deceased, case was registered against them due to which they were having the enmity with the family members of the first informant. According to post mortem examination report the deceased has sustained chop cut wound and multiple incised wound over the neck. The cause of death was as a result of decapitation caused by multiple incised wound and chop cut wound over the neck area. The applicant applied for bail before Incharge, Sessions Judge, Varanasi who rejected the same on 13.8.2009. 3. It is contended by learned counsel for the applicant that the first informant is not eye witness, he has lodged the FIR on hearsay as told by his son Rupesh. There is no direct eye witness account. The only allegation is that the applicant and other co-accused persons were seen by Rupesh when they were running away from the house of the deceased. There is no other evidence against the applicant even no recovery has been made from the possession of the applicant or at his pointing out. There was no enmity of the applicant with the deceased. There was a dispute over a window opening for which from both the sides FIRs have been registered. The applicant was in a reception party of one Sharad Kumar Sharma at the time of the alleged incident, he remained there from 8.30 P.M. to 11.00 P.M. where Vediography and photography was also done. According to the prosecution version also no weapon was shown in the hands of the applicant, it was shown in the hands of co-accused Jittu and Dabbu. The recovery of the said weapon had also been made at the pointing out of the co-accused Gyan Pamnani @ Dabbu. It is also surprising that the prosecution story is not corroborated by any person of the locality. The only evidence against the applicant is of the statement of Rupesh, the son of the deceased. He has been falsely implicated only on the basis of doubt and suspicion on account of the local partibandi. The applicant is not having any criminal antecedents. 4. The only evidence against the applicant is of the statement of Rupesh, the son of the deceased. He has been falsely implicated only on the basis of doubt and suspicion on account of the local partibandi. The applicant is not having any criminal antecedents. 4. In reply of the above contention, it is submitted by learned A.G.A. and learned counsel for the complainant that the applicant and other co-accused persons were having the strong motive to commit the murder of the deceased, the murder of the deceased had taken place in a pre planned manner and it was a organized crime. The applicant and other co-accused persons are builders, they have good political patronage and influential person, they wanted to grave a piece of land, it was opposed by the first informant because the accused persons after the second thought, the cross FIR was registered from the side of the accused person. The applicant and other co-accused persons are continuously tempering with evidence, they were pressurising the I.O. also by making bogus allegation. The plea of the alibi may not be considered at this stage. The applicant was identified by the witness Rupesh when he was coming out from the house of the deceased. The applicant is changing his his defence. During investigation the statement was taken that the applicant was at his home, he was taking rest only co-accused Kailash Atwani had gone to magic show the marriage reception also. The applicant and other co-accused persons have committed the murder of the deceased in side the house of the deceased. The neck of the deceased was secreted. The FIR has been promptly lodged. The accused persons including the applicant deliberately did not give their hair sample cleverly only upper part of the hairs was given as sample as a result the proper expert opinion could not obtained whereas it was found hairs were of the human. In such a case the murder has been committed in a good locality, bail may not be granted to the applicant and the applicant is man of criminal nature. The FIR under section 3(1) of U.P. Gangster Act has also been registered against him on 18.12.2009. In case the applicant is released on bail, he may temper with the evidence and fair trial may not be ensured. 5. The FIR under section 3(1) of U.P. Gangster Act has also been registered against him on 18.12.2009. In case the applicant is released on bail, he may temper with the evidence and fair trial may not be ensured. 5. Considering the facts, circumstances of the case, submissions made by learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and from the perusal of the record, it appears that in the present case FIR has been lodged by Devenrra Kumar Dudwani on the basis of the narration of the fact given by his son Rupesh who saw the applicant and other co-accused persons in a running condition coming out from the house of the deceased, in side the house, the dead body of the deceased was found in a pool of the blood. It is alleged that clothes of the accused persons were blood stained and the sharp edge weapons in he hands of co-accused Jittu and Dabu, at that time no other persons was in side the house. The motive has also been attributed, the gravity of the offence is too much and without expressing any opinion on the merits of the case, the applicant is not entitled for bail, the prayer for bail is refused. Accordingly this application is rejected.