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Allahabad High Court · body

2017 DIGILAW 1110 (ALL)

Prem Chadnra Sharma v. State of U. P.

2017-04-26

VIPIN SINHA

body2017
JUDGMENT Vipin Sinha, J. 1. Heard Sri Manish Tiwari and Sri N.I. Zafri learned counsel for the applicant, Sri Viresh Mishra and Miss. Viparna Gaur, learned counsel for the complainant and Sri N.B. Singh learned AGA for the State. 2. Applicant has moved the present bail application seeking bail in Case Crime No. 337 of 2016, under Sections 147, 302, 307, 504, 506 and 120B I.P.C., P.S. Ujhani, District Budaun. 3. I have perused the prosecution story as set up in the F.I.R.; and also the bail rejection order. 4. The contention as raised at the bar by learned counsel for the applicant is that the applicant has been falsely implicated in the present case. It is contended that the applicant is not named in the FIR wherein six persons have been specifically named. The first informant is not an eye witness. The FIR has been lodged on the basis of information received from one Bihari, the eye witness, who was driving scooty on which the deceased was the pillion rider. The contention is that the deceased was a woman and also an advocate and she met with an accident, which has been given a shape of pre planned murder. Further contention is that Bihari in his statement given under section 161 Cr.P.C. has not named the applicant; that the applicant had no motive to commit the crime; that as per the FIR version itself the motive, if any, lies with an accused who has been named in the FIR itself, namely, Yogendra Sagar. It has been submitted that after a period of one month one Samsad was introduced who has completely changed the entire prosecution story and applicant though not named specifically but description has been given and specific role of 120B IPC of hatching of conspiracy has been assigned to the co-accused Girish Mishra; that in the statement which is annexure-5 at page 57, six persons have been introduced, along with Girish Mishra and the applicant. Even though the applicant has not been named, however in the said statement it is clearly mentioned %hnd1%Þbl dke ds fy, fxjh”k feJk ls 45000 esa lkSnk gqvk FkkAÞ%hnd2% Thus in the said statement main role has been assigned to co-accused Girish Mishra of hatching a conspiracy and by also of striking a deal with the other accused persons and thus of hatching of conspiracy in the commission of murder of the deceased. Thereafter the confessional statement of Kallu was recorded and second statement of Bihari was also recorded. The statement of Bihari has been annexed as Annexure No. 7 and in the said statement the applicant has been introduced and motive has been assigned and he also has been assigned the role of hatching a conspiracy. The further contention is that after a period of four months, another person, namely, Manoj has been introduced, who claims himself to be an eye witness and also claims that while he was trying to help the victim, the victim uttered that %hnd1%ih lh “kekZ rwus eq>s ejok fn;kA %hnd2% However, the fact remains that this persons has been introduced in the scene after four months and his statement was recorded on 23.9.2016. He has not been named in the FIR as an eye witness. It has been further pointed out that Bihari was the person who was present on the spot as he was driving the scooty on which she was a pillion rider. Much reliance has been placed on the averments contained in paragraph 20 and onwards and on the basis of which false implication of the applicant has been contended. The first informant appearing in person has strongly opposed the bail application and this court record its appreciation in the manner that the case has been argued very ably. 5. This Court asked a specified question as to how and in what manner she is trying to distinguish the case of the applicant from that of Girish Mishra who is a co-accused and who was assigned the main role of being a initiator and of striking a deal and of paying the money and who has been granted bail vide judgment and order dated 18.11.2016 passed by another Bench of this Court by means of a very reasoned, elaborate and speaking order. 6. The learned counsel Miss. 6. The learned counsel Miss. Viparna Gaur has very fairly conceded that the only distinguishing feature at this stage is ‘motive’. The contention is that the applicant had a motive of committing the crime. The reason given by the first informant with regard to the motive is to the effect that admittedly the deceased was in a consensual relationship with the applicant; that there were some dispute with regard to monetary transaction between the deceased and the applicant; that the deceased was claiming her legal right as a legally wedded wife of the applicant; that the deceased was also claiming some part of the property of the applicant in her capacity as a partner in a live-in-relationship with the applicant and; that a huge money was transferred in the account of the applicant by the deceased. 7. Counsel for the applicant Sri Manish Tiwari has strongly refuted the aforesaid contention and he submits that the relationship is being admitted but at best the evidence on record shows that it was a relationship gone sour and infact it was highly volatile relationship; that motive by itself will not be sufficient to bring home a finding of guilt; that as far as money transaction is concerned, the transaction is admittedly reflected in the income tax returns itself and it is further submitted that if the entire prosecution story is believed to be true in toto, the only allegation against the applicant was of hatching a conspiracy but it has been reiterated by the learned counsel for the applicant that the ingredients of 120-B are missing and there is no evidence on record to show any previous meeting of mind. 8. The counsel for the complainant has also placed much reliance on the call details and also on the criminal history of the applicant. As far as call details are concerned it has been argued by the learned counsel for the applicant Sri N.I. Zafri that the said call details are yet to be verified and the veracity is yet to be adjudicated upon by the court concerned during the trial where evidence would be produced in accordance with law. Reliance in this regard has been placed on a judgment rendered by the Apex Court in the case of Anvar P.V. v. P.K. Basheer and others (2014) 10 SCC 473 . Reliance in this regard has been placed on a judgment rendered by the Apex Court in the case of Anvar P.V. v. P.K. Basheer and others (2014) 10 SCC 473 . So far as criminal history is concerned, the same have been admittedly explained in paragraph Nos. 28, 49 and 54 and has been seen, however, for the sake of brevity the same is not being reproduced hereinbelow. It has further been submitted by the counsel for the applicant that the applicant has not been convicted in any criminal offence as on date. It has further been informed to the Court that the investigation against the applicant has been completed and charge sheet has already been placed against the applicant and thus there is no chance of the applicant of either hampering with the investigation or tempering with the evidence. It has been contended that there is nothing on record to show the active participation or even presence of the applicant in the alleged crime on the date, time and place of the accident. 9. Thus in view of the aforesaid facts and circumstances of the case and also keeping in view the reasons as contained in the order dated 18.11.2016 by means of which the co-accused Girish Mishra has been granted bail, prima facie a case for grant of indulgence has been made out. 10. Without expressing any opinion on the merits of the case, at this stage, prima facie, a case for grant of bail has been made out. However, the said prima facie view of this Court will not in any manner adversely affect the case of the prosecution. The prayer for bail is granted. 11. The application is allowed. 12. Let the applicant Prem Chandra Sharma involved in the aforesaid case crime number be released on bail on executing a personal bond and furnishing two local heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions: i) The applicant shall not tamper with the prosecution evidence. ii) The applicant shall not threaten or harass the prosecution witnesses. iii) The applicant shall appear on the date fixed by the trial court. iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected. ii) The applicant shall not threaten or harass the prosecution witnesses. iii) The applicant shall appear on the date fixed by the trial court. iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected. v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such facts to the Court or to any police officer or tamper with the evidence. 13. In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court. 14. However, looking to the period of detention of the applicant, it is directed that the aforesaid case crime number pending before the concerned court below be decided expeditiously, preferably within one year from the date of production of certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle as has been laid down in the recent judgment of Hon’ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220 , if there is no legal impediment. 15. It is clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence. 16. Let a copy of the order be certified to the court concerned for necessary compliance. 17. In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court. 18. It is further clarified that in case the first informant Miss. Viparna Gaur has any apprehension whatsoever regarding her own security/safety, liberty is given to her that in case such occasion arises, she may file an appropriate application in this regard seeking security before the court concerned itself and in case such an application is filed, the same shall be decided as expeditiously as possible in accordance with law by the court concerned.