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2016 DIGILAW 3332 (ALL)

Hariom @ Churrey v. State of U. P.

2016-09-28

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Karuna Nand Bajpayee, J. This application has been filed seeking the release of the applicant on bail in Case Crime No. 78 of 2015 u/s 302 IPC, Police Station-Tajganj District- Agra. 2. Heard learned counsel for the applicant, learned counsel for the opposite party and learned A.G.A. Perused the record. 3. Submission of learned counsel for the applicant is that there is no eyewitness account of the murder and, therefore, the applicant should be released on bail. Further submission is that incriminating recovery has also been effected from the possession of other co-accused and not from the applicant which makes his case distinguishable and is on better footing. 4. Learned AGA for the State and Sri Pankaj Dwivedi, learned counsel for the opposite party have opposed the prayer for bail and have pointed out that there is sufficient evidence to indicate that the applicant along with other co-accused was in hot pursuit of one Dal Chand and the telltale story has been given by the witnesses as to how the applicant reached in the search of Dal Chand, who hid himself behind the boundary wall, while the deceased opened the gate on which the accused-applicant along with other accused started making assault upon deceased Mahesh and started beating and accusing him for having managed the escape of Dal Chand. There is evidence to the effect that thereafter the applicant and other co-accused forced the deceased to sit on the motorcycle, which was driven by accused Santosh, while the deceased was sandwiched between co-accused Santosh and another co-accused Ranjeet, who was sitting on the pillion, while the applicant and other co-accused Awadhesh rode on another motorcycle and then all the accused taking along with them the deceased, fled away. Further submission is that this is a case of forced abduction and thereafter the deceased was murdered and his dead body was thrown away. Further submission is that even the statement of Dal Chand who initially himself was beaten up by the accused persons and who had got his duty changed because of some dispute and had come to a different place in order to save his life, is also very relevant, who has given details about the whole sequence of events. Further submission is that even the statement of Dal Chand who initially himself was beaten up by the accused persons and who had got his duty changed because of some dispute and had come to a different place in order to save his life, is also very relevant, who has given details about the whole sequence of events. Further submission is that conspicuous nature of the facts are sufficient to indicate that the applicant was a part and parcel of the whole group and the murder was executed in furtherance of the common intention of all and the deceased was in a dare devil manner abducted by force and taken away in front of the witnesses and then after killing him the dead body was thrown away. As to how the incident of actual murder has happened, the same has to be explained by the accused persons who themselves were having the especial knowledge about the subsequent post-abduction events. The accused, therefore, are under burden to explain the same under Section 106 of the Indian Evidence Act regarding which they have utterly failed. Even presumption under Section 114 of the Indian Evidence Act has to be drawn in such circumstances. There is no other reasonable inference to be drawn in such circumstances than the fact that accused persons had together executed the murder of the deceased in furtherance of their common intention. Further submission is that though the evidence collected by the investigation has also found the specific role played by the different accused but the totality of the circumstances are such that it will not be possible to segregate the intention of different accused, which was so obviously the same and common. The autopsy of deceased revealed multiple entry and exit wounds on his body. 5. Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected. 6. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.