Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 958 (ALL)

Saurabh Rathaur v. State of U. P.

2020-06-16

SAMIT GOPAL

body2020
JUDGMENT : 1. Heard Sri Suresh Kumar Gupta, learned counsel for the applicant, Sri P.K. Singh, learned counsel for the first informant and Sri J.K. Upadhyaya, learned A.G.A. for the State. 2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Saurabh Rathaur, seeking enlargement on bail during trial in connection with Crime No. 202 of 2018, under Sections 364, 302, 201 I.P.C., registered at P.S. Bilhaur, District Kanpur Nagar. 3. Learned counsel for the first informant has not filed any counter affidavit and states that he could not file the same inspite of being granted time twice for it. He states that the matter be heard and decided. The Court thus proceeds to hear the matter. 4. Learned counsel for the applicant argued that the incident in the present case took place on 18.5.2018 at about 8.00 P.M. for which an F.I.R. was registered by Thakur Prasad on 20.5.2018 at about 12.00 P.M. against unknown persons in which he stated that his son Rishu Yadav has disappeared since 18.5.2018 from 8.00 P.M. He was searched but could not be located. He is aged about 17 years. A report regarding his disappearance is important to be registered. He has come to know that his son had gone on a Pulsar motorcycle as a pillion rider with the applicant Saurabh Rathaur on 18.5.2018 at about 8.00 P.M. His mobile number has also been disclosed in the F.I.R., with the prayer that a report of disappearance be ordered to be registered. On the said application F.I.R. was registered and investigation started. 5. It is then argued that the statement of the first informant was recorded on 23.5.2018, copy of which has been annexed as annexure no. 2 to the affidavit, in which he has improved the version and introduced the fact that while his son and the applicant Saurabh Rathaur were going on motorcycle, his wife came out of the house and enquired into as to where they were going to which she was informed that they will return in 10 minutes. Subsequently, Smt. Meera Devi, the wife of the first informant, was interrogated under Section 161 Cr.P.C. on 3.6.2018, copy of the said statement is annexed as annexure no. 3 to the affidavit. Subsequently, Smt. Meera Devi, the wife of the first informant, was interrogated under Section 161 Cr.P.C. on 3.6.2018, copy of the said statement is annexed as annexure no. 3 to the affidavit. She has stated the same version regarding her enquiring about the fact as to where both persons were going and the same reply being given to her. 6. It is then argued that subsequently on 8.6.2018 on an information of police informer three persons namely, Saurabh Rathaur the present applicant, Shivam and Shahid were arrested, copy of the said purcha no. XI dated 8.6.2018 of the case diary is annexed as annexure no. 4 to the affidavit. It is then argued that the police has recorded the confession of all the three arrested persons committing the murder of the son of the first informant. 7. Attention has further been drawn to annexure no. 5 of the affidavit which is the recovery memo dated 8.6.2018 wherein bones, one lid of mobile phone, one vest, one jeans with belt and T-shirt along with other articles are alleged to have been recovered on the joint pointing out of the applicant and both co-accused persons. It is thus argued that the implication of the applicant is only on the basis of suspicion and last seen or taking away of the deceased on 18.5.2018 at about 8.00 P.M. The confession of the accused before police and the alleged recovery of bones/skeletons and other articles in no manner get connected and are incriminating to the present incident. Learned counsel for the applicant further argued that co-accused Shahid has been granted bail by a co-ordinate Bench of this Court vide order dated 18.11.2019 passed in Criminal Misc. Bail Application No. 23469 of 2019. 8. It is further argued that a report of D.N.A. was called for which has been filed in the affidavit of compliance dated 30.7.2019 filed on behalf of the State, in which the opinion after D.N.A. examination is that the same could not be matched with the source sample of the first informant and his wife and as such, there is no connecting and reliable evidence to show that bones/skeletons as recovered belongs to that of Rishu Yadav, son of the first informant. It is further argued that the present matter is a case of circumstantial in nature without any eye witness account. It is further argued that the present matter is a case of circumstantial in nature without any eye witness account. Further argument of learned counsel for the applicant is that the missing report/F.I.R. has been lodged after inordinate delay of about two days. 9. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the accused is not having any criminal history as stated in para-21 of the affidavit and he is in jail since 08.6.2018 and there is no likelihood of early conclusion of trial. 10. Per contra, learned counsel for the first informant argued that naming of the applicant has been consistent throughout from inception. There has been recovery of bones/skeletons and other articles on the joint pointing out of the applicant and other co-accused persons. The evidence of recovery and confession of the applicant clinches the issue and there remains no doubt to show his involvement in the present matter. 11. Learned A.G.A. also argued that the present matter is a case of circumstantial evidence without any eye witness account. Thus the applicant has been implicated on the basis of being last seen with the deceased and thus the burden lies on the applicant to explain the disappearance of Rishu Yadav. The recovery of 'gamchha' and bones/skeletons on the pointing out of the applicant also shows his involvement. 12. Learned counsel for the first informant and learned A.G.A. thus argued that the present bail application be rejected. 13. There is no eye witness account to the incident. The deceased was last seen in the company of the applicant on 18.5.2018 at about 8.00 P.M. by his mother. There is no further evidence to show that the deceased remained continuously in the company of the applicant. The bones/skeletons as recovered did not match with the test sample during D.N.A. examination. The recovery of 'gamchha' on the pointing out of the applicant and other co-accused persons is in no manner incriminating as cause of death has not been ascertained and thus its use in the incident cannot be established. Confession of the applicant before the police is an inadmissible piece of evidence. The recovery of 'gamchha' on the pointing out of the applicant and other co-accused persons is in no manner incriminating as cause of death has not been ascertained and thus its use in the incident cannot be established. Confession of the applicant before the police is an inadmissible piece of evidence. The evidence of law seen is a week type of evidence without any further corroboration of the applicant being in the company of the deceased till the time of his death. 14. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. 15. Let the applicant Saurabh Rathaur be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 16. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 17. The bail application is allowed. 18. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 19. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 20. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High 21. Court Allahabad and shall make a declaration of such verification in writing.