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2019 DIGILAW 1106 (ALL)

Dileep Gupta v. State of U. P.

2019-04-29

MANJU RANI CHAUHAN

body2019
JUDGMENT : Manju Rani Chauhan, J. 1. Counter affidavit filed on behalf of the State and the rejoinder affidavit filed on behalf of the applicant to the counter affidavit of the first informant in Court today are taken on record. 2. Heard Sri Atharva Dixit, learned counsel for the applicant and Sri Om Prakash Mishra, learned A.G.A. for the State as well as perused the material on record. 3. The present bail application has been filed by the applicant-Dileep Gupta with a prayer to enlarge him on bail in Case Crime No.933 of 2016, under Sections 364, 506 and 120-B I.P.C., Police Station-Chakeri, District-Kanpur Nagar, during the pendency of the trial. 4. It transpires from the record that an application has been made by Manju Gupta to the Police Station stating therein that on 27th September, 2016 at 02:00 p.m. after receiving a telephone, her daughter Piniki Gupta, left her house and when she did not return, the informant along with family members tried to search her but they could not succeed because of which a missing report has been lodged on 12th October, 2016 at 2040 hours and subsequently during the course of investigation the said missing report converted into first information report, which has been registered on 16th November, 2016 at 04:30 a.m. under Section 363 I.P.C., Police Station-Chakeri, District-Kanpur Nagar. 5. In the statement recorded on 20th November, 2016 under Section 161 Cr.P.C., the first informant reiterated the same version as unfolded in the first information report. During the course of investigation, from the call detail records of the victim, a mobile number allegedly belonging to one Gaurav Pandit was found to be suspicious by the Investigating Officer and on the basis of same, the Investigating Officer on 17th December, 2016 recorded the statement of Gaurav Pandit under Section 161 Cr.P.C., however, from his statement it was found that the said call received in the mobile phone of victim was a wrong number. Thereafter on the basis of call detail records of the victim, statement of one Rohit Gupta was also recorded under Section 161 Cr.P.C. by the Investigating Officer, wherein he has stated that a phone call of victim has been received by him regarding sale of a plot by the victim. Thereafter on the basis of call detail records of the victim, statement of one Rohit Gupta was also recorded under Section 161 Cr.P.C. by the Investigating Officer, wherein he has stated that a phone call of victim has been received by him regarding sale of a plot by the victim. Further on the basis of call detail records of the victim, statements of Ritendra Singh Bauwa Thakur (co-accused), Amit Rajpoot and Dileep Singh @ Sonu were recorded under Section 161 Cr.P.C., wherein they claimed to have received the phone call from the mobile number of victim with regard to sale of some plot. Thereafter the investigation was going on and nothing relevant was collected by the Investigating Officer. 6. On 6th August, 2018 i.e. after a lapse of more than two years, the informant moved an application before the Deputy Inspector General of Police, Kanpur Nagar stating therein that the applicant, who is friend of co-accused Ritendra Singh @ Bauwa Thakur used to keep a bad intention on the victim and on 12th September, 2016, the applicant along with the co-accused Ritendra Singh had made an attempt to outrage the modesty of the victim, due to which a first information report has been lodged by the victim herself on 12th September, 2016 being Case Crime No. 271 of 2016 under Sections 323, 354D, 504 and 506 I.P.C. and on 27th September, 2016, the victim had left her house saying that she was going to court for getting her statement recorded under Section 164 Cr.P.C. in the said case, after which she did not return. It has been further alleged that on the date of incident i.e. 27th September, 2016, co-accused Ritendra Singh had visited the house of the informant and informed her that a compromise has been arrived at between him and the victim and she has gone to visit Vaishno Devi and the co-accused Ritendra Singh befooling her advised to lodge a missing report only in the Police Station. It has also been stated that the co-accused has threatened her. She suspected that the victim has been kidnapped by co-accused Ritendra Singh and Dilip Gupta along with others. 7. In the restatement, the first informant has reiterated the same version as stated in the application dated 6th August, 2018. 8. It has also been stated that the co-accused has threatened her. She suspected that the victim has been kidnapped by co-accused Ritendra Singh and Dilip Gupta along with others. 7. In the restatement, the first informant has reiterated the same version as stated in the application dated 6th August, 2018. 8. In the reinstatement of one Rohit Yadav recorded on 24th August, 2018, it has been stated that he knew the victim and the co-accused Babuwa Thakur @ Ritendra Singh. The victim was having a love affair with the co-accused. However, after marriage of the co-accused with another woman, he tried to leave her but the victim did not want to leave him as the co-accused was taking care of her. There was a quarrel between them for whatever reason it may be, due to which she lodged a first information report against him along with his friend and when the co-accused Babuwa Thakur exerted pressure upon the victim to withdraw the said case by way of compromise, she had refused to do so. Thereafter on 27th September, 2016, the co-accused Babuwa Thakur requested Rohit Yadav to convince the victim for compromise between them and on that request, Rohit Yadav called the victim on phone to come to the Highway bridge, where the co-accused came and he also called the victim on phone. At 1:30 p.m. the victim came to the temple near the highway where the co-accused met her then he called his friend Anuj Raj by phone on which Anuj Raj came to that place with his car in which Rohit, the co-accused, victim and Anuj Raj sat in the car, wherein all except Rohit drunk liquor and in between the co-accused had given Rs. 10,000/-to the victim, after which an oral compromise has been made between them of which a video has been made by the co-accused. Thereafter on request of the co-accused, Rohit arranged another car, namely Ertiga, which was brought by Golu Thakur and they sat in the said Car and Golu Thakur went by the car of Anuj. In the said car also Rohit, the co-accused, Anuj and the victim dran liquor. After compromise, Rohit left them and came to his house. Thereafter on request of the co-accused, Rohit arranged another car, namely Ertiga, which was brought by Golu Thakur and they sat in the said Car and Golu Thakur went by the car of Anuj. In the said car also Rohit, the co-accused, Anuj and the victim dran liquor. After compromise, Rohit left them and came to his house. At 06:30 p.m. (evening), the co-accused called Rohit to bring the car of Golu near bridge and when he went to bridge, the co-accused requested Rohit to bring the car of Golu after some time, as the co-accused, the victim and Anuj were drinking liquor. After waiting for an hour, he came to his house. Thereafter Rohit and Golu tried to search them for bringing the car, they could not succeed in searching them. 9. In the confessional statement, the co-accused, namely Babuwa Thakur has stated that about five years ago, the applicant had lodged a first information report against the victim and the first informant qua theft and as the victim and the first informant were well known to the co-accused, he did pairvy of them in the said case. Thereafter the co-accused and victim was fallen in love and in between the co-accused married another woman. Due to love affair with the victim, he used to help her mother financially and he also wanted to leave the victim. In between the applicant and the co-accused became friends due to which there was a quarrel between the victim and the co-accused and for the same the victim has lodged a first information report against the applicant and the co-accused, which has been detailed in the application filed by the first informant, because of which he was unhappy with the victim. The co-accused and his friends tried to compromise but the victim did not agree. The applicant was also unhappy from the victim and he also tried to compromise but the victim did not agree. After that the co-accused decided to kill the victim. The co-accused reiterated the same statement as stated by Rohit. He has accepted that he killed the victim inside the car by throttling her and thereafter he threw the dead body of the deceased in the Yamuna River. He has also stated that when he was killing the victim, Anuj was driving the car. 10. The co-accused reiterated the same statement as stated by Rohit. He has accepted that he killed the victim inside the car by throttling her and thereafter he threw the dead body of the deceased in the Yamuna River. He has also stated that when he was killing the victim, Anuj was driving the car. 10. It has been argued by learned counsel for the applicant that the applicant is not named in the first information report. For the alleged incident dated 27th September, 2016, the first information report has been lodged on 12th October, 2016 i.e. after 15 days from the date of the incident for which no plausible explanation has been given. In the application made by the first informant on 6th August, 2018, name of the applicant has surfaced after expiry of a period of more than two years from the date of incident i.e. 27th September, 2016. The applicant has been falsely implicated in the present case as he had earlier lodged a first information report against the first informant and the deceased qua theft. It has further been argued by the learned counsel for the applicant that in the application made by the first informant as well as in her statement recorded under 161 Cr.P.C., she has just suspected about the complicity of the applicant in the alleged occurrence and no specific allegation has been levelled against the applicant in any manner whatsoever. In the statement and reinstatement of the independent witness, namely, Rohit and friend of co-accused Babuwa Thakur, nothing has been stated against the applicant. In the confessional statement of the co-accused also, nothing has been stated against the applicant qua commission of offences punishable under Sections 364, 506 and 120-B I.P.C. as well as under Section 302 I.P.C. The co-accused has only stated that the applicant was not happy with the victim/deceased as she was not ready to withdraw the case which had been lodged by her against the applicant and the co-accused. The offences punishable under Sections 364, 506 and 120-B I.P.C. as well as under Section 302 I.P.C. have been committed by the co-accused with the help of Rohit and Anuj, as the same is evident from the statements of Rohit and confessional statement of the co-accused. The offences punishable under Sections 364, 506 and 120-B I.P.C. as well as under Section 302 I.P.C. have been committed by the co-accused with the help of Rohit and Anuj, as the same is evident from the statements of Rohit and confessional statement of the co-accused. The police has also not found anything wrong against the applicant, which goes to show that the applicant is not involved in the present case. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 29th September, 2018. 11. Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, the learned A.G.A. could not dispute the factual submissions as urged by the learned counsel for the applicant. 12. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and the material on record as well as the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Another reported in (2018) 3 SCC 22 and without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. 13. If, in the opinion of the trial court absence of the applicant, is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.