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Allahabad High Court · body

2021 DIGILAW 1027 (ALL)

Ajay Kumar Yadav v. State of U. P.

2021-09-08

PIYUSH AGRAWAL, SURYA PRAKASH KESARWANI

body2021
JUDGMENT : 1. Heard Sri Sarvesh Chaubey, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Roopak Chaubey, learned AGA for the State-respondent Nos. 1, 2, 3 & 4 and Sri Gyan Prakash, assisted by Sri Sanjay Kumar Yadav, learned counsel for the respondent no. 5. 2. It is a case of custodial death of a young boy aged about 24 years, namely, Krishna Yadav @ Pujari. As per FIR No.0038/21, dated 12.02.2021 under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District – Jaunpur, the SOG team and SO Baksa, Ajay Kumar Singh came to the house of the deceased on 11.02.2021 about 03:00 P.M. and took away the deceased with an intent to implicate him falsely and the deceased was detained at the police station. At about 08:00 P.M. the S.O. Baksa and other policemen (ten in numbers) forcibly entered in the house of the informant and after breaking lock of the box took away Rs.60,000/- and other articles and used filthy language against women family members of the deceased. At about 12.30 P.M. the incharge SOG and SO Baksa, Ajay Kumar Singh and 10 - 12 policemen brought the deceased who was not even able to stand and was loudly crying ^^ekW&ekW eq>s cpk yks iqfyl okys eq>s tku ls ekj nsaxsaA^^ Policemen also took away the motorcycle kept in the house and when the informant went to the police station he was not allowed to meet with his brother (deceased) and in the morning, 2 information was received that his brother Krishna Yadav @ Pujari died in police custody who has been murdered by the policemen. 3. On the other hand, the police has developed a story that as per G.D. Entries Nos.05 and 06, dated 12.02.2021, the deceased was apprehended while he was driving a motorcycle who fell, received injuries and could not fled away and he told that in the afternoon of 11.02.2021 he was hit by a motorcycle and the public beaten him. The arrest of the deceased has been shown at 10:25 P.M. on 11.02.2021. The arrest of the deceased has been shown at 10:25 P.M. on 11.02.2021. As per G.D. the deceased was brought to the police station Baksha at 01:30 A.M. on 12.02.2021 and at the same time he was sent for first aid alongwith Sub Inspector Sunil Kumar Tiwari, constable Manish Kumar and constable Samir Kumar and the Doctor at the CHC referred the deceased for treatment to District Hospital, Jaunpur and by the time they reached at the District Hospital Jaunpur, Krishana Yadav @ Pujari died and thus he was brought to the District Hospital as dead. Copy of G.D. No.05 dated 12.02.2021 has been filed by the respondent no.2 as Annexure C.A. -2 to the counter affidavit dated 01.09.2021 and the G.D. Entry No.06 of even date and time i.e. 12.02.2021 time 01:30 A.M., has been produced today by the learned A.G.A. before us stating that inadvertently these pages could not be annexed with the counter affidavit. In G.D. No.05 dated 12.02.2021 time 01:30 A.M. it has been mentioned that : ^^vfHk;qDr }kjk ckj&ckj djkgus ij iwWNus ij crk;k fd lkgc vkt djhc 2-00 cts nksigj es xzke fojgniqj ds ikl ,d eksVjlkbfdy ls VDdj yx x;k FkkA jkgxhj eq>s mlds lkFk feydj eq>s dkQh ekjs ihVs FksA ftldh otg ls esjs 'kjhj es txg txg pksVs vk;h gSA ftlds dkj.k nnZ gks jgk gSA fxjrkjh dh lwpuk mldh ekW dks ekSds ij gh nh tk jgh gSA fdUrq xokgh ij gLrk{kj djus ls euk dj jgh gSA nkSjku fxjrkjh o cjkenxh ekuokf/kdkj vk;ksx o ekuoh; loksZPp U;k;ky; ds funsZ'kks dk ikyu fd;k x;k vfHk;qDr dk ;g d`R; /kkjk 392@411@414 Hkknfo dk vijk/k gSA vr% dkj.k fxjrkjh crkdj le; djhc 22-25 cts fgjklr iqfyl esa fy;k x;k QnZ ekSds ij VkpksZ o fctyh dh jks'kuh es fy[kdj i&#2338dj lHkh lEcfa/kr ds vykekr cuok;s tk jgs gSA QnZ dh izfr vfHk;qDr dks nh tk jgh gSA^^ 4. The F.I.R. lodged by the brother of the deceased being the first information report No.0038/21, dated 12.02.2021 (at 16:35 hours) under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District – Jaunpur, (in which SOG Team Jaunpur, Station House Officer Baksa, namely, Ajay Kumar and police personnel of police station Baksa are named as accused), is reproduced below: lsok esa Jheku iqfyl v/kh{kd tkSuiqj egksn; lfou; fuosnu gS fd izkFkhZ vt; dqekj ;kno iq= fryd/kkjh ;kno xzke idM+h pdfetkZiqj Fkkuk cD'kk ftyk tkSuiqj dk fuoklh gw¡ ?kVuk fnukad 11-02-2021 le; 3 cts fnu esa ,lvksth Vhe o ,l-vks- cD'kk vt; dqekj flag e; gejkgh iwjh QkslZ ds lkFk esjs ?kj ij vk;s vkSj esjs HkkbZ d`".kk dqekj ;kno mQZ iqtkjh iq= fryd/kkjh mez 24 o"kZ idM+dj Fkkus ys x;sA tcfd esjs HkkbZ ds fo:) dksbZ vkijkf/kd eqdnek tuin ds fdlh Fkkus esa ugh gSA esjk HkkbZ O;ogkj dq'ky O;fDr Fkkuk esjs HkkbZ dks ,Lk-vks-th- Vhe o ,l-vks- cD'kk vt; dqekj flag QthZ eqdnesa esa Q¡lkus ds fu;r ls Fkkus esa cSBk;s Fks jkf= 08-00 cts ,l-vks- cD'kk e; gejkfg;ksa o iqfyl okyks 10 dh la[;k Fkh vk;s vkSj ?kj esa ?kqldj cDls dk rkyk rksM+dj 60]000 :i;k o lkeku ,l-vks- cD'kk vt; dqekj flag o iqfyl okys mBk ys x;sA euk djus ij fd efgykvks dks Hkíh&2 xkfy;k¡ fn;s iqu% 12-30 cts jkf= es ,l-vks-th- Hkkjh o ,l-vks- cD'kk vt; dqekj flag e; gejkfg;ksa cksysjks 10 eksVj lkbfdy ls 10 ls 12 iqfyl okyks ds lkFk esjs HkkbZ dks esjs ?kj ysdj vk;s esjk HkkbZ [kM+k ugh gks jgk Fkk tksj&tksj fpYyk jgk Fkk ek¡&ek¡ eq>s cpk yks iqfyl okys iqfyl okys eq>s tku ls ekj nsxsA vkSj ?kj ij j[kh eksVj lkbfdy Hkh mBk ys x;sA eS Fkkus ij x;k eq>s iqfyl okys feyus ugh fn;sA lqcg lwpuk feyh fd iqfyl dLVMh es esjs HkkbZ fd ekSr gks x;h esjs HkkbZ dh gR;k mijksDr iqfyl okyks }kjk dh x;h gSA vr% Jheku th ls vuqjks/k gS fd ,l-vks- cD'kk dks vknsf'kr djsa fd rRdkyhu ,l-vks- cD'kk o ,l-vks-th- Vhe e; gejkgh;ks a ds fo:) gR;k o ywV dk eqdnek ntZ djsa vko';d dk;Zokgh djsaA izkFkhZ vt; dqekj ;kno iq= fryd/kkjh ;kno xzke idM+h pdfetkZiqj Fkkuk cD'kk tkSuiqj eksckby 9984669989 gLrk{kj vt; ;knoA uksV& mDr rgjhj o dk;eh gs0eks0 lqjsUnz dqekj }kjk cksy&cksydj v{kj'k% dEI;wVj esa QhM djok;k x;kA^^ 5. As per the alleged post mortem report, the injuries are as under:- 1. Contusion present in both buttocks of size 30X 20 cm which bluish brown in colour. 2. Contusion present in lower scapular region of size 15 X 8 cm which is bluish brown colour. 4 3. Contusion present Lt. Arm lateral of size 10X 3 cm which is bluish brown colour. 6. As per post mortem report, the cause of death of deceased was "shock and Syncope as a result of ante mortem, myocardial and Infarction". 7. Due to custodial death, a judicial inquiry was entrusted in the matter to the Chief Judicial Magistrate, Jaunpur, who recorded statements of 16 inquiry witnesses. The first set of inquiry witnesses are the family members of the deceased, the second set of inquiry witnesses are independent witnesses and the 3rd set of inquiry witnesses are doctors and the policemen including the Sub-Inspector Sunil Kumar Tiwari (IW14), Constable Manish Kumar (IW-12) Constable Samir Kumar (IW-13). The first set of inquiry witnesses are the family members of the deceased, the second set of inquiry witnesses are independent witnesses and the 3rd set of inquiry witnesses are doctors and the policemen including the Sub-Inspector Sunil Kumar Tiwari (IW14), Constable Manish Kumar (IW-12) Constable Samir Kumar (IW-13). The statement of inquiry witnesses IW-12 Constable Manish Kumar, IW 13 Constable Samir Kumar and IW-14 Sub-Inspector Sunil Kumar Tiwari as recorded by the Chief Judicial Magistrate and incorporated by him in his report dated 25.06.2021 filed as Annexure CA -12 to the counter affidavit of the respondent no.2 dated 01.09.2021, are reproduced below : ^^lk{kh vkbZŒMCY;wŒ12 dkŒ euh"k dqekj] Fkkuk cD'kk us C;ku fd;k gS fd& ^^fnukad 11-02-2021 dks jkf= x'r es FkkA jkf= 10-25 ls jkf= x'r es M;wVh es FkkA eSa ,lŒvkbZŒ lquhy dqekj frokjh ds lkFk Fkk o gejkgh dkŒ lehj dqekj d lkFk jkf= x'Rk dh M;wVh es FkkA jkf= 01-30 ls ikSus 2-00 ds chp Fkkus ls Qksu vk;k vkSj ge yksxks dks Fkkus ij cqyk;k x;kA Fkkus ij tkdj iwNus ij ge yksxks dks crk;k fd fdlh eqyfte dh rch;r [kjkc gks x;h gS] mldks vLirky tkuk gSA eqyfte dk uke ,lŒ,pŒvksŒ lkgc us nkjksxk th dks crk;k Fkk fd mldk uke d`".kk mQZ iqtkjh gS vkSj ;g Hkh crk;k Fkk fd blds isV es nnZ gks jgk gSA fQj jkf= nks cts ds yxHkx eS o ,lŒvkbZŒ lquhy dqekj frokjh o dkŒ lehj dqekj }kjk eqyfte dks izkFkfed LokLFk; dsUnz ukSisMok ys tk;k x;kA eS d`".kk ;kno ds 'kjhj ij dksbZ pksV ugh ns[kkA d`".kk ;kno us ,slk dksbZ dFku ugha fd;k Fkk fd mlds lkFk fdlh iqfyldehZ us ekjihV dh gSA vLirky Fkkus ls yxHkx nks fdŒehŒ dh nwjh ij gSA vLirky ls MkDVj lkgc us d`".kk ;kno dks ftyk vLirky jsQj dj fn;k FkkA mldh rch;r ml le; dkQh [kjkc Fkh ijarq og ekjihV fd;s tkus dh dksbZ ckr ;k f'kdk;r ugh dj jgk FkkA lkeqnkf;d fpfdRlky; ls d`".kk ;kno dks ftyk vLirky ,acqysal }kjk ys tk;k x;k FkkA eSa ftyk vLirky ugh x;k FkkA^^ lk{kh vkbZŒMCY;wŒ 13 dkŒ lehj dqekj] Fkkuk cD'kk us c;ku fd;k gS fd& ^^fnukad 11-02-2021 dks jkf= esa eS ,lŒvkbZŒ lquhy dqekj frokjh o gejkgh dkŒ euh"k dqekj ds lkFk jkf= x'r es Fkk fd jkf= 01-30 ls ikSus 2-00 ds chp Fkkus ls Qksu vk;k vkSj ge yksxks dks Fkkus ij cqyk;k x;kA Fkkus ij tkdj iwNus ij ge yksxks dks crk;k fd fdlh eqyfte dh rch;r [kjkc gks x;h gS] mldks vLirky tkuk gSA eqyfte dk uke ,lŒ,pŒvksŒ lkgc us nkjksxk th dks crk;k Fkk f mldk uke d`".kk mQZ iqtkjh gS vkSj ;g Hkh crk;k Fkk fd blds isV es nnZ gks jgk gSA fQj jkf= nks cts ds yxHkx eqyfte dks esjs ,lŒvkbZŒ lquhy dqekj frokjh o dkŒ euh"k dqekj }kjk izkFkfed LokLF; dsUnz ukSisMok ys tk;k x;kA eSusa d`".kk ;kno ds 'kjhj ij dksbZ pksV ugh ns[khA d`".kk ;kno us ,slk dksbZ dFku ugh fd;k Fkk fd mlds lkFk fdlh iqfyldehZ us ekjihV dh gSA vLirky Fkkus ls ek= nks fdŒehŒ dh nwjh ij gSA vLirky ls MkDVj lkgc us d`".kk ;kno dks ftyk vLirky jsQj dj fn;k FkkA mldh rch;r ml le; dkQh [kjkc FkhA ijarq og ekjihV fd;s tkus dh dksbZ ckr ;k f'kdk;r ugh dj jgk FkkA lkeqnkf;d fpfdRlky; ls d`".kk ;kno dks ftyk vLirky ,acqqysal }kjk ys tk;k x;k FkkA eSa ftyk vLirky ugh x;k FkkA ogh ls Fkkus okil vk x;k FkkA^^ lk{kh vkbZŒMCY;wŒ 14 mifujh{kd lquhy dqekj frokjh] Fkkuk cD'kk us c;ku fd;k gS fd& ^^fnukad 11-02-2021 dks Fkkuk cD'kk ij jkf= vf/kdkjh ds :i es esjh M;wVh FkhA eSa vius gejkfg;ksa dkŒ euh"k dqekj o dkŒ lehj dqekj ds lkFk yxHkx 10-40 cts Fkkus ls jokuk gksdj jkf= x'Rk esa Hkze.k ij Fkk fd jkf= 01-30 ls ikSus 2-00 ds chp Fkkus ls Qksu vk;k vkSj ge yksxksa dks Fkkus ij cqyk;k x;kA Fkkus ij tkdj iwNus ij ge yksxks dks crk;k fd fdlh eqyfte dh rch;r [kjkc gks x;h gS] mldks vLirky tkuk gSA Fkkuk/;{k egksn; ls iwNus ij mUgksus crk;k eqyfte dk uke d`".kk ;kno mQZ iqtkjh gS vkSj ;g Hkh crk;k Fkk fd blds isV esa nnZ gks jgk gSA fQj rqjar gh eS mifujh{kd vius gejkfg;ksa ds lkFk eqyfte d`".kk ;kno mQZ iqtkjh dks ysdj izkFkfed LokLF; dsUnz ukSisMok x;sA tgkW ij og Loa; gh xkM+h ls mrj dj vLirky ds vanj x;k Fkk rFkk MkDVj lkgc }kjk mldks ns[kk x;k o mldk bykt fd;k x;kA eSuasa eqyfte d`".kk ;kno mQZ iqtkjh ds 'kjhj ij dksbZ pksV o [kjksap ugh ns[kk Fkk rFkk mlus eq>ls o esjs gejkfg;ksa ls Hkh dksbZ ekjihV] pksV [kjksap dk ftØ ugha fd;k FkkA MkDVj lkgc }kjk tc mlls iwNk x;k rks mlus crk;k Fkk fd isV esa nnZ gks jgk gSA ;g ckr eSusa vLIkrky esa mlds eqWg ls lquk FkkA vLirky Fkkus ls djhc nks fdyksehVj dh nwjh ij gSA MkDVj lkgc us ogkW ij ekStwn fdlh vU; O;fDr ls 108 uEcj ij Qksu djok;k Fkk rFkk crk;k fd bldh rch;r [kjkc gS] bldks ftyk fpfdRlky; jsQj fd;k tk jgk gSA rqjar gh Qksu djus ij 108 ,acqysal lhŒ,pŒlhŒ ukSisMok ij vk;h o d`".kk ;kno mQZ iqtkjh dks ftyk fpfdRlky; tkSuiqj ysdj x;h FkhA ysfdu eS Fkkuk/;{k egksn; dks lkjh ckr crkdj okil jkf= x'r Hkze.k gsrq Fkkuk {ks= pyk x;k FkkA^^ 8. The IW 16 Kansraj Yadav (an independent witness) has stated before the Judicial Magistrate on 11.02.2021 as under : ^^Lkk{kh vkbZŒMCywŒ 16 daljkt ;kno us c;ku fd;k gS fd & ^^eS pk; dh nqdku yxkrk gwWA fnukad 11-02-2021 es eS viuh nqdku ij FkkA nqdku ds lkeus ,lŒvksŒ cD'kk dh xkM+h [kM+h FkhA ml le; yxHkx 03-30 ct jgs FksA ogka ij 10&12 iqfyl okys FksA ogkW lkSjHk ikBd d`".kk ;kno mQZ iqtkjh dks cSBkdj ysdj vk;k vkSj es: nqdku ds lkeus vkdj eksVjlkbfdy jksd nhA ihNs ls pUnzcnu o vt; ;kno eksVjlkbfdy ls vk;sA d`".kk ;kno ls esjh nqdku ds lkeus fdlh us ekjihV ugh dh FkhA os yksx mls ysdj ogka ls pys x;s FksA vxys fnu eq>s irk pyk fd d`".kk ;kno dh e`R;q gks x;h gSA esjs lkeus d`".kk ;kno ls fdlh us dksbZ ekjihV ugh dh FkhA eq>s blds vykok vkSj dksbZ tkudkjh ugh gSA^^ 9. IW-2 (Smt. Satta mother of the deceased) and IW-3 (Ajay Kumar Yadav informant and brother of the deceased) and IW-4 (Pradip Yadav, brother of the deceased) have stated before the Chief Judicial Magistrate as under : ^^lk{kh vkbZŒMCywŒ2 Jhefr lrk us c;ku fd;k gS fd & ^^esjs rhu yM+ds FksA cMs dk uke vt; ;kno] nwljs csVs dk uke d`".kk mQZ iqtkjh rFkk NksVs csVs dk iznhi ;kno gSA lkSjo iafMr esjs ?kj vk;s FksA rkjh[k ;kn ugh gSA cksys fd cD'kk ds njksxk th d`".kk ;kno dks cqyk;s gSA 03-00 cts lka; d`".kk ;kno dks lkSjo iafMr viuh xkM+h ij cSBkdj ys x;s FksA vt; ;kno o xkao ds pUnzcnu dks eSa Fkkus ij Hksth Fkh] fd D;k ckr gS tks d`".kk ;kno dks iqfyl cqyk;h gSA fQj jkr es 08-00 cts 10&12 iqfyl okys ftlesa dqN lknh onhZ es Fks] esjs ?kj vk;s vkSj ?kj es rksM&QksM djus yxsA isVh dk rkyk rksM+dj 60]000@& :i;s ywV fy;sA eSuas jksduk pkgk rks eq>s ?klhVdj ckgj dj fn;kA iqfyl okys ywVkekj djds 60]000@& :i;s ywV dj pys x;sA jkr es 12-30 cts iqfyl okys esjs yM+ds d`".kk ;kno dks ftldks cgqr ekjihV j[kk Fkk dks ysdj esjs ?kj vk;s vkSj dgk fd Msढ+ yk[k :i;k nks ugh rks rqEgkjs yM+ds dks tku ls ekj nsaxsA eSusa dgk fd eSa iSlk ugh ns ldrhA fQj iqfyl okys esjs yM+ds dks ysdj okfil pys x;sA vxys fnu lqcg 05-00 cts irk pyk fd d`".kk dh e`R;q gks x;h gSA esjs ?kj es esjs lkeus d`”.kk ;kno dks iqfyl okyks us ugh ekjk Fkk ijarq og cqjh pksfVy FkkA^^ lk{kh vkbZŒMCywŒ 3 vt; dqekj ;kno u c;ku fd;k fd& ^^eS ,ŒlhŒ eSdsfud ds gSYij ds :i es ,d lky ls dke dj jgk gwWA mlds igys iढ+rk FkkA ge rhu HkkbZ FksA e`rd d`".kk ;kno mQZ iqtkjh ea>yk HkkbZ FkkA fnukad 11-02-2021 dks le; 03-00 cts lkSjHk ikBd iq= ftrsUnz ikBd ckbZd ls vk;k tksfd d`".kk ;kno ds ikl vkrk tkrk FkkA eSusa mldks vkrs gq, ns[kk FkkA oks vkdj cksyk fd ,lŒvksŒ lkgc jksM ij [kMs gS vkSj rq>dks cqyk jgs gSA jksM ?kj ls 150 ehVj nwjh ij gSA d`".kk mldh ckbZd ij cSBdj pyk x;kA eSa vkSj pUnzcnu mlds ihNs&ihNs ckbZd ls x;s FksA jksM ij tkdj lkSjHk ckbZd jksd fn;kA tgkW ij iqfyl okys Fks] ftlesa ls dqN onhZ/kkjh ugha FksA jksM ls d`".kk ;kno dks tcjnLrh cSBkus yxs rks eSusa fojks/k fd;kA rk mUgksus dgk fd eS ,lŒvksŒthŒ ls iwNrkN ds fy, ys tk jgs gSA ml Vhe es ,lŒvksŒ vt; dqekj Hkh FksA ckfd ds yksx dks eS ugh igpkurkA fQj iqfyl okys d`".kk ;kno mQZ iqtkjh dks xkM+h esa cSBkdj ys x;sA ;s ?kVuk daljkt ;kno ftldh jksM ij pk; dh nqdku gS us Hkh ns[khA eSa okil ?kj pyk vk;kA ?kj vkdj ?kVuk ds ckjs es yksxks dks crk;kA djhc 04-30 cts eS rFkk pUnzcnu Fkkuk cD'kk x;sA tc ge Fkkus ij x;s rks ns[kk fd d`".kk tehu ij cSBk FkkA mlus gedks crk;k fd iqfyl okys mlds ekjs&ihVs gSA og dg jgk Fkk fd HkkbZ gedks cpk yks] iqfyl okys cgqr ekj jgs gSA gedks iqfyl okyks us mlls feyus ugha fn;k vkSj iqtkjh dks mBkdj vanj ys x;sA ge yksxks dks xkyh nsdj rkus ds Hkxk fn;kA ogka ls eSus ckgj fudydj ,lŒihŒ lkgc dks Qksu djds rFkk OgkVl,Ik djds crk;kA ijarq ,lŒihŒ lkgc us larks"ktud tokc ugha fn;kA esjh muls Qksu ij ckr gqbZ FkhA fQj eS ?kj pyk x;kA jkr ds 08-00 cts ds djhc 10&12 iqfylokys ftles dqN onhZ/kkjh ugh Fks vk;s vkSj ?kj esa ?kql x;s rFkk njoktk ihVus yxsA eS rFkk esjh ekrkth us d`".kk ;kno ds ckjs es iwNk rks mu yksxks us dgk fd oks Fkkus ij gSA fQj iqfylokyks us esjs NksVs HkkbZ dh iRuh dksey tks vanj ds dejs es lksbZ Fkh mldks tcjnLrh njoktk [kqyokdj gkFk ls idM+dj fudky fn;kA nks eksckbZy vkSj eksVjlkbfdy tcjnLrh ys x;sA jkr es iqu% 12-30 cts 10&12 iqfylokys esjs HkkbZ dks ysdj vk;s ftles ,lŒvksŒ vt; dqekj flag Hkh FksA esjk HkkbZ jks ihV jgk Fkk vkSj py ugh ik jgk FkkA nks iqfylokys mldks idM+ dj yk;s vkSj ckgj iM+h pkjikbZ ij Mky fn;kA esjk HkkbZ tksj&tksj ls dg jgk Fkk fd tks Hkh iSlk gks budks ykdj ns nks vkSj gedks cpk yks ugh rks ;s yksx eq>s ekj MkysaxsA esjh ekrkth esjs HkkbZ dks idM+dj jksus yxh] dgus yxh tks Hkh iSlk Fkk oks vki yksx igys ls gh ywV pqds gks fQj ,lŒvksŒ vt; dqekj us dgk fd lkyk iz/kkuh yMsxk] eS bldks iz/kkuh yMkrk gwWA fQj ,lŒvksŒ vt; dqekj flag us dgk fd vxj vius yM+ds dks lgh lykr ns[krk pkgrs gks rks Msढ+ yk[k :i;k ysdj Fkkus vkvks ugh rks bls xksyh ekj nsaxsA ge jkr esa Fkkus ij ugha x;sA lqcg 06-00&06-30 cts gYyk gksus yxk fd d`".kk ;kno mQZ iqtkjh dks iqfyl okyks us tku ls ejk fn;kA blds ckn yxHkx 08-00 cts ,lŒihŒ flVh ds vkokl ij x;k vkSj mudks iwjh ckr crk;hA ,lŒihŒ flVh us fnyklk nsdj dgk fd ,slh dksbZ ckr ugh gS rqEgkjk HkkbZ tYnh NwV tk;sxkA ,lŒihŒflVh us ,d njksxk dks cqyk;k ftudk uke jkts'k ;kno gS tks 'kk;n ljiragka Fkkus ls gS cqyok;kA fQj ,lŒihŒ flVh vnaj pys x;s vkSj ,lŒvkŒ jkts'k ;kno gedks ckgj ys x;sA eq>s crk;k fd rqEgkjs HkkbZ dh e`R;q gks x;h gSA oks cksys tks gksuk Fkk oks gks x;k] mudks ,slk ugh djuk pkfg, FkkA fQj oks eq>s xkM+h es cSBkdj tcjnLRkh lns vLirky ys x;sA ogka ij 100&200 iqfylokys igys ls ekStwn FksA vkSj reke yksx Hkh FksA cMh dgus lquus d ckn ges rFkk izeksn ;kno dks gekjs HkkbZ dk eqag fn[kk;sA esjs HkkbZ ds gkFk dkys gks jgs FksA iwjh ihB dkyh gks x;h FkhA jhढ dh gMMh ds ikl [kwu fudy jgk FkkA fQj ge yksxks dks ckgj fudky fn;sA iqfyl okys fjiksVZ fy[kus dks rS;kj ugh Fks] tc yksxks us ncko cuk;k rks lka; ds le; fjiksVZ fy[kh x;hA fjiksVZ eSus fy[kk;h FkhA tks nksigj es 03-00 cts iqfylokys jksM ij ls iqtkjh dks mBk dj ys x;s Fks rks ml le; mls dksbZ ugh ekjk FkkA tc ge Fkkus ij x;s iqfylokys tks 4&5 dh la[;k es Fks M.Ms o csYV ls ekj jgs FksA tc jkr es iqfylokys ?kj ysdj vk;s Fks rc fdlh iqfylokys us ugh ekjk FkkA esjh ekrkth dks IykfLVd dk ikbZi ekjs FksA tc iqfylokys Hknnh&Hknnh xkfy;kW ns jgs FksA esjs HkkbZ dk dksbZ vkijkf/kd bfrgkl ugh FkkA tc lh/kk&lh/kk O;fDr FkkA esjs HkkbZ dks mBkus esa lkSjHk ikBd dk iwjk gkFk gS ijarq ifylokys mlds f[kykQ dkbZ dk;Zokgh ugh dj jgs gSA esjk HkkbZ iw.kZ :i ls LoLFk Fkk] mls dksbZ fcekjh ugh FkhA mldh e`R;q iqfylokys ds ekjus ds dkj.k ls gqqbZ gSA^^ lk{kh vkbZŒMCywŒ4 iznhi ;kno us c;ku fd;k gS fd& ^^ge yksx rhu HkkbZ FksA ftlesa eS lcls NksVk gwWA vt; ;kno lcls cM+k] d`".kk ;kno mQZ iqtkjh chp okyk HkkbZ FkkA eS eqEcbZ es ajgdj ,ŒlhŒ eSdsfud dk dke djrk gwWA esjs firkth Hkh eqEcbZ esa jgdj xkM+h pykrs gSA fnukad 11-02-2021 dks esjh iRuh dksey ;kno us Qksu djds crk;k fd ejs HkkbZ d`”.kk dks iqfyl mBk ys x;h gSA esjs iwNus ij mlus crk;k fd Fkkuk cD'kk dh iqfyl ftl esa ,lŒvksŒ vt; flag o ,lŒvksŒthŒ dh Vhe jksM ij ls mBk dj ys x;h gSA mlus crk;k fd lkSjHk ikBdj mldks cqykdj ys x;k FkkA iqfylokys dg jgs Fks fd iwNrkN djds NksM nsaxs vkSj ge yksx fuf'pr gks x;sA fQj esjh iRuh us Qksu djds crk;k fd iqfylokys ?kj ij vkdj iSlk vkSj ?kj dk lkeku ywV ys x;s gS] rc ge ?kcjk x;s vkSj vU; yksxks ls ckrphr fd;kA ijarq mu yksxks }kjk dksbZ larks"ktud tokc ugh fn;k x;kA jkr 12-30 ds ckn esjh tku cpk yks ugh rks ;s yksx eq>s tku ls ekj nsaxsA ,lŒvksŒ vt; flag us Hknnh&Hknnh xkfy;ka nh vkSj dgk fd vxj iSlk ugh nksxs rks lqcg rsjs csVs dh yk'k feysxhA ;g ckr esjh iRuh }kjk eq>s Qksu djds crk;h x;h FkhA lcg 06-00 cts dks 12 rkjh[k dks esjh iRuh dk Qksu vk;k fd iqfylokyks us d`".kk ;kno dks ekj Mkyk gS vkSj lnj vLirky esa NksMdj pys x;s gSA ge yksx mUgsa ns[kus tk jgs gSA fQj eSa] esjs firkth] esjs cMs ikik dk yM+dk fouksn ;kno YkkbZV }kjk tkSuiqj vk;sA tkSuiqj lnj vLirky lka;dky 06-30 & 07-00 cts ds chp es igqWpsA eSus vkSj esjs iwjs ifjokj us HkkbZ ds 'ko dks ns[kk FkkA bldh dej ij o vkW[k] ukd o dku ls [kwu vk jgk FkkA fQj ge yksxksa dk vLirky ls gVk fn;k x;kA^^ lk{kh vkbZŒMCywŒ 5 MkŒ euh"k dqekj dsljokuh lhŒ,pŒlhŒ lqtkuxat¼iksLVekVZedrkZ½ us c;ku fd;k gSA afd& ^^eq[;k fpfdRlkf/kdkjh] tkSuiqj ds vkns'k ds vuqlkj esjh M;wVh fnukad 12-02-2021 dks iksLVekVZe gkÅl] tkSuiqj yxk;h x;h FkhA esjs vykok esjs iSuy es MkŒ 'kkfgn v[rj] lhŒ,pŒlhŒ efM;kgwW o MkŒ izoh.k dqekj] lhŒ,pŒlhŒ jsgVh ,oa QkekZfLkLV vo/ks'k dqekj] iqfyl ykbZu vLirky ekStwn FksA fnukad 12-02-2021 dks ,ŒMhŒ,eŒ ds vkns'kkuqlkj jkf= 09-10 ihŒ,eŒ ij d`".kk ;kno mQZ iqtkjh dk 'ko foPNsn 'kq: fd;k x;kA 'ko foPNsn dh dk;Zokgh dh fofM;ksxzkQh 'kqHke ekS;kZ }kjk dh x;hA 'ko dks dkŒ vjfoUn dqekj o dkŒ euh"k dqekj Fkkuk cD'kk }kjk iksLVekVZe gkÅl yk;k x;k FkkA iksLVekVZ fjiksVZ ij esjs iSuy }kjk fuEu pksVs ik;h x;h& (1) Contusion of size 30 x 20 cm nksuks furEcksa ij tksfd yky Hkwjk jax fy;s gq;s FkkA (2) Contusion of size 15 x 08 cm yxHkx mijh ihB ij nksuks rjQ da/kks ds ikl tksfd yky Hkwjk jax fy;s gq, FkkA (3) Contusion of size 10x08 cm yxHkx ck;s Hkqtk ij ckgj rjQ Fkk tksfd uhyk jax fy, gq, FkkA mDr rhuksa pksVksa ds vykok vU; dksbZ tkfgjk pksV ugh FkhA dksbZ gMMh Hkh VwVh ugh FkhA fdlh /kkjnkj gfFk;kj dh Hkh dksbZ pksV ugh FkhA mDr pksVs ,slh izd`fr dh ugh Fkh] ftlesa fd fdlh dh e`R;q izk;% lEHkkO; gksA tc 'ko dk foPNsn fd;k x;k rks izFker% Nkrh [kksyus ij ;g ik;k x;k fd nksuks QsQM+ks esa [kwu Hkjk gqvk FkkA ilyh esa dksbZ fnDdRk ugh FkhA lkal uyh lkekU; FkhA xnZu esa dksbZ fnDdr ugh FkhA g`n; ds nks pSEcjks es [kwu Hkjk Fkk g`n; ds nkfgus pSEcj Ventricle dh fiNyh fnokj ij 2 x 1 cm dk lQsn /kCck FkkA tks fd fpfagr djrk gS fd mDr /kCck MI ¼fny dk nkSjk½ g`n;k?kkr gksus dh otg ls lEHkkO; gSA^^ 10. As per story developed by the police, the deceased was brought to the police station at about 01:30 A.M. on 12.02.2021 after his arrest at about 10:25 P.M. on 11.02.2021 and he was sent to CHC Naupedwa, Jaunpur, at about 02:00 AM on 12.02.2021 for first aid, where Doctor referred him for District Hospital and when the deceased was brought to District Hospital by ambulance he was found dead. 11. Learned A.G.A. has produced before us case diary to impress that as per an alleged slip issued by the Doctor on emergency duty in 10 Amar Sahid Uma Nath Singh District Hospital Jaunpur dated 12.2.2021, the deceased Krishna Yadav was brought dead at the Hospital at about 03:35 A.M. by the Constable Manish Kumar and Constable Samir Kumar, P.S. Baksa. 12. A supplementary affidavit dated 09.08.2021 has been filed by the petitioner annexing therewith three photographs of the dead body of the deceased Krishna Yadav. Averments in this regard have been made by the petitioner in paragraph 3 of the supplementary affidavit dated 09.08.2021 which have not been denied or disputed by the respondent No.2 and the respondent No.3 in separate counter affidavits filed by them. The counter affidavit has been filed on behalf of respondent no.2 by Chaub Singh, Circle Officer Badlapur, District – Jaunpur who replied the contents of paragraphs 2 and 3 of the aforesaid supplementary affidavit, in paragraph 33 of his counter affidavit as under : “That the contents of paragraph nos. 2 & 3 of the supplementary affidavit refer to post mortem report dated 12.02.2021 and colour photographs of the deceased Krishna Yadav @ Pujari and as per the post mortem report there were three injuries on the person of the deceased and as per opinion of the doctor the said injuries are not sufficient for death and the cause of death of deceased is Shock & Syncope as a result of ante-mortem myocardial infraction and the viscera was preserved for any intoxication. As per the viscera report dated 01.07.2021 issued by the Forensic Science Laboratory, Ram Nagar , Varanasi no Chemical poison was found in viscera.” 13. As per the viscera report dated 01.07.2021 issued by the Forensic Science Laboratory, Ram Nagar , Varanasi no Chemical poison was found in viscera.” 13. In his counter affidavit dated 06.09.2021, Sri Ajay Kumar Sahani, Superintendent of Police, Jaunpur, has replied paragraph 3 of the aforesaid supplementary affidavit, as under : “That in reply to the contents of paragraph no.3 of the supplementary affidavit, it is submitted that the post-mortem report shows that there were 3 injuries on the person of deceased and as per the penal of doctors these injuries were not sufficient for death. The cause of death was due to shock and syncope as a result of ante-mortem myocardial infarction.” 14. On 03.09.2021 this writ petition was heard at length and a detailed order dated 03.09.2021 was passed, observing as under :- Despite all these facts well on record and for the reasons best known to the respondents, they have not taken any action against the accuseds pursuant to the impugned FIR but as a matter of eye wash transfer or suspension or attachment order of accuseds were passed. The custodial death of deceased is undisputed. Serious allegations supported by the inquiry witnesses are well on record and yet for the reasons best known to the respondents, no action has been taken against the accused, instead, it prima facie appears that effort is being made to linger the investigation and carry it in a direction so the accused policemen may escape. 15. When this matter was heard on 06.09.2021 in presence of the Superintendent of Police Jaunpur, this court noted in the order the admission and submissions made by the State-respondents, as under : “Heard Sri Sarvesh Chaubey, learned counsel for the petitioner, Sri S.K. Pal, learned Government Advocate assisted by Sri Roopak Chaubey, learned AGA for the State-respondents. On oral request, learned counsel for the petitioner is permitted to implead Central Bureau of Investigation through its Director as respondent no. 5 in the array of parties. He undertakes to serve a copy of the writ petition along with supplementary affidavit and a copy of this order upon the counsel appearing on behalf of C.B.I., during course of the day. Counter affidavit on behalf of respondent no. 3 dated 6.9.2021 has been filed today, which is taken on record. 5 in the array of parties. He undertakes to serve a copy of the writ petition along with supplementary affidavit and a copy of this order upon the counsel appearing on behalf of C.B.I., during course of the day. Counter affidavit on behalf of respondent no. 3 dated 6.9.2021 has been filed today, which is taken on record. Sri Ajay Kumar Sahni, Superintendent of Police, Jaunpur is present in the Court in compliance of the order dated 3.9.2021. Learned Government Advocate admits that the photographs of the deceased filed along with the supplementary affidavit dated 9.8.2021 is undisputed. The contents of paragraph no. 3 of the supplementary affidavit dated 9.8.2021 regarding the aforesaid photographs, have neither been disputed nor denied by the respondent no. 3 in paragraph no. 43 of the counter affidavit dated 6.9.2021. He states that accused police men are absconding and efforts are being made for their arrest. He submits that the present Superintendent of Police namely Sri Ajay Kumar Sahni has taken the charge on 17.6.2021 and thus he was not the Superintendent of Police at the time of registration of first information report no. 0038 of 2021 dated 12.2.2021 under Section 302, 394, 452, 504 IPC in which the SOG team Jaunpur, S.O. Baksa, Ajay Kumar Singh and S.O. Hamrah, Thana Baksa Jaunpur were the 12 accused. He states that one Sri Rajkaran Naiyar was the then Superintendent of Police, Jaunpur. Learned counsel for the petitioner prays for and is granted a day's time to file rejoinder affidavit. Put up as fresh on 8.9.2021 at 10:00 A.M. for further hearing before this Bench.” 16. The facts as briefly noted above prima facie reveal that the deceased was lifted by the S.H.O. Police Station Baksa and other policemen on 11.02.2021 and, thereafter he remained in the custody. The story of accident of the deceased in the afternoon of 11.02.2021 is a story prima facie developed by the police so as to give a different colour for the death of the deceased. As per own case of the police and G.D. entry, the deceased was arrested at about 10:25 A.M. on 11.02.2021 but he was brought to the police station at about 01:30 A.M. on 12.02.2021 and no treatment was required. As per own case of the police and G.D. entry, the deceased was arrested at about 10:25 A.M. on 11.02.2021 but he was brought to the police station at about 01:30 A.M. on 12.02.2021 and no treatment was required. Surprisingly, telephone calls were made to Sub-inspector Sunil Kumar Tiwari, Constable Manish Kumar and Constable Sameer Kumar between 01:30 A.M. to 01:45 A.M. requiring them to come to the police station to carry the deceased for first aid/treatment. As per statement given by these three police personnel before the C.J.M., Jaunpur, they took the deceased at about 02:00 A.M. on 12.02.2021 to bring him to C.H.C. Naupedwa, Jaunpur. 17. As per police story, the aforesaid S.I. Sunil Kumar Tiwari, Constables Manish Kumar and Sameer Kumar also brought the deceased to District Hospital, Jaunpur. But perusal of their statement before the C.J.M. reveals that they had neither carried nor brought the deceased to the District Hospital rather they returned from C.H.C. Nawpedwa. As per photo-stat copy of the entry in the register at C.H.C. Nawpedwa, Jaunpur at serial No.E-3092, Krishna Yadav, when brought to the C.H.C., Naupedwa, Jaunpur, was unconscious and his B.P. and P.P. were not found and after thorough examination, the doctor referred him to District Hospital, Jaunpur at 01:55 A.M. The aforesaid photo stat copy of 13 the register of C.H.C. Naupedwa, Jaunpur, has been produced before us by the learned A.G.A. stating it to be part of the case diary. Thus, when as per own case of the respondents, they took the deceased Krishna Yadav at about 02.00 A.M. on 12.02.2021 from the police station Baksa, then how it is possible that the doctor after thorough examination, has referred the deceased for District Hospital at 01:55 A.M. That apart, the doctor at the C.H.C. has found the deceased in an unconscious condition and his B.P. and P.P. were not found whereas the G.D. entry shows that the deceased was merely making some complain of pain in stomach. Surprisingly, the aforesaid three policemen who brought Krishna Yadav to C.H.C. Naupedwa, have stated that they have not seen any scratch or injury on the body of Krishna Yadav who has also not told about injuries and who told the doctor about pain in stomach, WHEREAS as per entries made by the doctor in the register at the C.H.C. Naupedwa, the Krishna Yadav was unconscious and his B.P. and P.P. were not found. Thus, the police story and G.D. entries are prima facie false and a criminal act to divert investigation in a wrong direction by manipulating evidences so as to defeat the rule of law and fair investigation. The respondents have set up a case that the deceased was carried by the aforesaid Sub Inspector Sunil Kumar Tiwari, Constable Manish Kumar and Constable Sameer Kumar from the police station to C.H.C. Naupedwa, Jaunpur and thereafter from the C.H.C., Naupedwa to the District Hospital Jaunpur, but these three persons have stated in their statement before the C.J.M., Jaunpur that they carried the deceased only upto C.H.C. Naupedwa Jaunpur and thereafter, they came back. Thus, the story developed by the respondents that the deceased was brought to District Hospital, Jaunpur by the aforesaid Sub Inspector and Constable, is itself not supported by their statements. 18. It is admitted case of the respondents that the deceased had received various injuries, which is reflected from the G.D. Entry No. 05. The statement made by the mother and brother of the deceased before the 14 C.J.M., Jaunpur regarding brutal beating by the police and consequent injuries to the deceased, prima facie corroborates with the photographs of the deceased and a little reference in the G.D. entry No. 5. Surprisingly, the post mortem report does not contain the injuries present on vital part of the body of the deceased which can be easily seen in the undisputed photographs filed alongwith the supplementary affidavit. Thus, prima facie, post mortem report also appears to be manipulated or procured under undue influence. 19. In paragraph 6 of the writ petition the petitioner has stated that the incident of lifting the deceased by the Police on 11.02.2021 was informed to the Superintendent of Police Jaunpur over telephone (mobile phone) and by sending messages but no action was taken. Copy of call details and messages have been filed as Annexure No.3 which have not been disputed by the Respondent Nos. Copy of call details and messages have been filed as Annexure No.3 which have not been disputed by the Respondent Nos. 2 & 3 both in their counter affidavits. In paragraph 5 of the writ petition the petitioner has stated about some independent eye witnesses and some family members who submitted their notarized statement before the District Magistrate and the Superintendent of Police, Jaunpur. Copies of statements of Ajay, Kanshraj, Chandrabhan and Saraswati Devi have been filed collectively as Annexure No.2. But in their counter affidavits the respondent Nos. 2 and 3 vaguely denied it without denying the fact of statements and its contents. From the records of the writ petition and the report of the C.J.M., Jaunpur dated 25.6.2021 it appears that the deceased was preparing for election of Village Panchayat and he was threatened by the SHO Baksha. 20. But in their counter affidavits the respondent Nos. 2 and 3 vaguely denied it without denying the fact of statements and its contents. From the records of the writ petition and the report of the C.J.M., Jaunpur dated 25.6.2021 it appears that the deceased was preparing for election of Village Panchayat and he was threatened by the SHO Baksha. 20. The statements given by witness and filed alongwith the writ petition as referred in paras above, are reproduced below :- 15 Statement of Ajay Kumar Yadav lsok es] fo"k; %& eqŒvŒlaŒ 38@2021 varxZr /kkjk&30] 394] 504 vkbZŒihŒlhŒ Fkkuk&cD'kk] ftyk&tkSuiqj es 16 lhvkjihlh ds c;ku ds lEca/k es& gyQukek feutkfuc vt; iq= fryd/kkjh mez rŒ30 o"kZ lkŒekSŒ& pdfetkZiqj] Fkkuk&cD'kk] ftyk&tkSuiqj gLc tSy gS%& nQk&1 eS cgyQ c;ku djrk gwW fd EkS mijksDr uke o irs dk ewy fuoklh gwW rFkk esjs uke o cfYn;r dk dksbZ vU; O;fDr esjs ekSts es ugh gSA nQk&2 eS cgyQ c;ku djrk gw¡ fd eqdnek mijksDr es oknh gwaA nQk&3 eSa cgyQ c;ku djrk gw¡ fd d`".kk mQZ iqtkjh iq= fryd/kkjh mŒrŒ 24 o"kZ lkŒekSŒ& pdfetkZiqj] Fkkuk&cD'kk] ftyk&tkSuiqj esjk NksVk HkkbZ FkkA nQk&4 eS cgyQ c;ku djrk gw¡ fd esjk NksVk HkkbZ d`".kk mQZ iqtkjh ds Åij tuin tkSuiqj ds fdlh Hkh Fkkus es dksbZ eqdnek ugh Fkk d`".kk ,d lh/kk&lk/kk O;ogkj dq'ky yM+dk FkkA vkSj og iz/kku in ds fy;s rS;kjh dj jgk FkkA nQk&5 eS cgyQ c;kau djrk gw¡ fd fnukad 11-02-2021 dks le; djhc 3 cts fnu dh gSA eSa o esjk NksVk HkkbZ d`".kk vkSj esjs fe= pUnzcnu ;kno ?kj ij cSBdj ckrphr dj jgs Fks fd eksVj lkbfdy ls lkSjHk ikBd iq= ftrsUnz ikBd lkŒekSŒ&flghiqj] Fkkuk ykbu cktkj] ftyk&tkSuiqj d`".kk ls dgs dh jksM ij pyks cD'kk ,l-vks- vt; dqekj flga cqyk jgs gSA rc d`".kk lkSjHk ikBd dh eksVj lkbfdy ij cSBdj mlds lkFk pyk x;kA nQk&6 eS cgyQ c;ku djrk gwW fd eSa vt; o esjs fe= pUnzcnu ds lkFk muds ihNs&ihNs esu jksM ij igqWpk rks lkSjHk us eksVj lkbfdy ys tkdj da'kjkt ;kno dh nqdku ds lkeus esu jksM+ ij jksd fn;kA ogka igys ls [kMs ,l-vks- cD'kk vt; dqekj flag o dqN iqfyl okys ogka Fks d`".kk dks tcjnLrh viuh xkM+h eS cSBkdj ysdj tkus yxs eSa o pUnzcnu us iqfyl okyks ls iwNk D;ksa ys tk jgs gS rks dqN iqfyl okys cksys dh ge yksx ,Lk-vks-th- ls gS iwNrkN ds fy, ys tk jgs gS lkSjHk Hkh iqfyl okyks dh xkM+h ds lkFk&lkFk viuh eksVj lkbfdy lss x;kAa nQk&7 eSa cgyQ c;ku djrk gwW fd d`".kk dks iqfyl okys dks ys tkrs le; vt; o da'kjkt ;kno o eS rFkk xkWo o vxy&cxy ds reke yksxks us ns[kkA nQk&8 es cgyQ c;ku djrk gwW fd d`".kk ;kno dks Fkkuk cD'kk iqfyl ys tkus ds ckn eS o pUnzcnu ;kno Hkh Fkkuk cD'kk x;s eSa o esjs fe= pUnzcnu us ns[kk esjs HkkbZ d`".kk dks iqfyl okys ykdvi esa cUn fd;s Fks esjk HkkbZ jks jgk FkkA eSa o pUnzcnu us d`".kk ls feyus dk iz;kl fd;k rks iqfyl okys eq>s o pUnzcnu dks xkyh&xqrk nsrs gq, Fkkus ls Hkxk fn;Sa nQk&9 eSa cgyQ c;ku djrk gwW fd Fkkus es iqfyl okyks }kjk esjs HkkbZ d`".kk dks ykWdvi esa can djus ij eq>s fo'okl gks x;k fd esjs HkkbZ dks iqfyl okys fdlh QthZ eqdnes es pkyku dj nsaxsA nQk&10 eSa cgyQ c;ku djrk gwW fd vius NksVs HkkbZ d`".kk dks QthZ eqdne esa Qalkus o izk.k j{kk ds fy, Jheku iqfyl v/kh{kd tkSuiqj ds ekSŒ& uaŒ&9454400280 ij vius eksckby uaŒ&9984669989 ls nks ckj Qksu yxHkx 5-35 cts 'kke fnukad 11-02-2021 dks Qksu fd;k rFkk tcko u feyus ij Jheku iqfyl v/kh{kd tkSuiqj ds eksckby okVlvi ij vius HkkbZ ds ckjs es Fkkuk cD'kk tcjnLrh mBk ys tkus ds ckor eSlst Hkh fd;k FkkA ftldk fjdkMZ esjs ikl gSA nQk&11 es cgyQ c;ku djrk gwW fd fnukad 11-02-2021 dks le; jkf= 8 cts eSa vt; ;kno Ok esjh iRuh lquhrk] esjh ekrk ljLorh nsoh] HkkHkh xqfM+;k] ppsjs HkkbZ izeksn ;kno vkslkj es cSBdj ckrphr dj jgs Fks vkSj gekjs NksVs HkkbZ iznhi ;kno dh iRuh dksey ;kno dh rch;r [kjkc gksus dh [TRUNCATED] Call details filed alongwith the writ petition prima faice showing the complaint made by the petitioner to the Superintendent of Police, Janupur on 11.02.2021, as referred in paragraph 19 of this order, is reproduced below :- “Messages and calls are end-to-end encrypted. No one outside of this chat, not even WhatsApp can read or listen to them. Tap to learn more Sir mai Ajay Yadav pakadi chak mirjapur se mera chota bhai chunav ki taiyari kar raha hai prachar prasar kar raha tha chetra me baksha thana utha ke le gai hai muje asanka hai kahi farji mukada na laga de sir hamari madad kare praadam sir 5:39 PM Krishna Yadav putra Tilakdhari Yadav 5:39 PM Call History S 094544 00280 Mobile, 5:55 PM Sp Junpur (S. P Jaunpur) + Add tag 094544 00280 Mobile, Yesterday 5:34 PM CALL MESSAGE BLOCK In your contacts 094544 00280 Mobile, Yesterday 5:32 PM (35s) 094544 00280 Mobile - BSNL View call history policejunpur@gmail.com Uttar Pradesh East, India Message +91 94544 00280” 22. As per the alleged Hospital slip being part of the case diary produced today in court by the learned Government Advocate in presence of the respondent No.3, the deceased was brought dead by the Police at District Hospital Jaunpur at about 3:35 A.M. On 12.02.2021, whereas, the Superintendent of Police Jaunpur and the District Magistrate Jaunpur have stated in their letters all dated 12.02.2021 sent to the National Human Rights Commission New Delhi and the District Judge Jaunpur that KRISHNA Yadav had died during treatment at 03:35 P.M. at District Hospital, Jaunpur. These facts have been mentioned by us only as instances. 23. Sri Gyan Prakash, learned counsel for the respondent No.5 submits that if this court directs then investigation shall be carried by the respondent No.5. 24. Perusal of the counter affidavit and copy of the case diary as produced before us by the learned G.A. Prima facie shows that entire effort of the police is to some how give clean chit to the accuseds and for this purpose important evidences are being left and some evidences are being created and manipulated. But presently we do not want to comment 25 any more since fair investigation is yet to be carried by an independent and impartial Agency. 25. But presently we do not want to comment 25 any more since fair investigation is yet to be carried by an independent and impartial Agency. 25. The facts mentioned above have been noted by us and brief discussion has been made by us only for the purposes to see as to whether investigation by the police has been carried honestly, fairly, diligently or attempt is being made to shield guilty police officers/policemen and to manufacture/create false evidences. Ultimately, whether the accused policemen have committed offence of murder and other offences and whether the then Superintendent of Police, Jaunpur and Circle Officer, Jaunpur were influencing the investigation and are creating false evidences, are matters of investigation. There are sufficient material on record which prima facie reveal commission of offence by the accuseds and involvement of higher officers in consiperacy, destroying evidences and creating false evidences to protect the accuseds. Fair investigation is the foundation for a fair trial. In the present set of facts fair investigation by State Police appears to be not possible in view of all the brief facts and circumstances noted above. 26. This court in writ jurisdiction does not intend to enter into these areas, but with the sole purpose as to whether fair investigation is being done or not, the facts in brief have been noted by us. Therefore, the investigation by any agency in a fair manner, shall not be influenced by any of the observations made by us. 27. Today, learned Government Advocate has stated before us that from the last three days, efforts are being made for arrest of the accused, but they are absconding and therefore, N.B.Ws. have been obtained for their arrest, but they could not be arrested so far. 28. The facts as briefly noted above would further prima facie reveal that officers of the I.P.S. rank also have some involvement in the murder/death of the deceased Krishna Yadav, who died in police custody, allegedly due to brutal beating by the accused policemen. 29. Post mortem report as well as alleged slip dated 12.02.2021 issued by the District Hospital also prima facie appears to have been managed/fabricated. Serious allegations have been made against the police personnel, which cannot be said to be completely without evidence. 30. 29. Post mortem report as well as alleged slip dated 12.02.2021 issued by the District Hospital also prima facie appears to have been managed/fabricated. Serious allegations have been made against the police personnel, which cannot be said to be completely without evidence. 30. In the case of K.V. Rajendran vs. Superintendent of Police vs. CBCID, South Zone, Chennai and others (2013) 12 SCC 480 (Paras-13, 14 and 17), Hon’ble Supreme Court observed that investigation can be transferred from the State Investigating Agency to any other independent agency like CBI and the power of transferring such investigation should be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind or where investigation by the State Police lacks credibility and it is necessary for having “a fair, honest and complete investigation” and particularly when it is imperative to retain public confidence in the impartial work of the State Agencies. In the aforesaid case, Hon’ble Supreme Court referred to its decision in Rubabbuddin Sheikh v. State of Gujarat & Ors (2010) 2 SCC 200 and observed that in order to do justice and instil confidence in the minds of the victims as well of the public, the State Police Authorities could not be allowed to continue with the investigation when allegations and offences were mostly against top officials. It was further observed that where high officials of State authorities are involved, or the accusation itself is against the top officials of the investigating agency thereby allowing them to influence the investigation, and further that it is so necessary to do justice and to instil confidence in the investigation or 27 where the investigation is prima facie found to be tainted/biased, the court could exercise its Constitutional powers for transferring an investigation from the State investigating agency to any other independent investigating agency like CBI only in rare and exceptional cases. 31. In Mithilesh Kumar Singh vs. State of Rajasthan and others (2015) 9 SCC 795 (Para-15), Hon’ble Supreme Court while emphasizing the need of fair, proper and impartial investigation, considered the transfer of investigation to CBI and held as under: “15. 31. In Mithilesh Kumar Singh vs. State of Rajasthan and others (2015) 9 SCC 795 (Para-15), Hon’ble Supreme Court while emphasizing the need of fair, proper and impartial investigation, considered the transfer of investigation to CBI and held as under: “15. Suffice it to say that transfers have been ordered in varied situations but while doing so the test applied by the Court has always been whether a direction for transfer, was keeping in view the nature of allegations, necessary with a view to making the process of discovery of truth credible. What is important is that this Court has rarely, if ever, viewed at the threshold the prayer for transfer of investigation to CBI with suspicion. There is no reluctance on the part of the Court to grant relief to the victims or their families in cases, where intervention is called for, nor is it necessary for the petitioner seeking a transfer to make out a cast-iron case of abuse or neglect on the part of the State Police, before ordering a transfer. Transfer can be ordered once the Court is satisfied on the available material that such a course will promote the cause of justice, in a given case.” 32. The criminal justice system mandates that any investigation into the crime should be fair, in accordance with law and should not be tainted. It is equally important that interested or influential persons are not able to misdirect or hijack the investigation, so as to throttle a fair investigation resulting in the offenders escaping punitive course of law. These are important facets of the rule of law. Breach of rule of law amounts to negation of equality under Article 14 of the Constitution of India. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must be right, just and fair and not arbitrary, fanciful or oppressive, vide Menka Gandhi vs. Union of India AIR 1978 SC 597 (para-7) and Vinubhai Haribhai Malviya and others vs. State of Gujrat and another AIR 2019 SC 5233 (paras-16 and 17) and Subramanian Swamy vs. C.B.I. (2014) 8 SCC 682 (para- 28 86). Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the procedure established by law in a fair trial which assures the safety of the accused. Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the procedure established by law in a fair trial which assures the safety of the accused. The assurance of a fair trial is the first imperative of the dispensation of justice, vide Commissioner of Police, Delhi vs. Registrar, Delhi High Court, New Delhi AIR 1997 SC 95 (para-16). The ultimate aim of all investigation and inquiry whether by the police or by the Magistrate is to ensure that those who have actually committed a crime, are correctly booked and those who have not, are not arraigned to stand trial. This is the minimal and fundamental requirement of Article 21 of the Constitution of India. Interpretation of provisions of Cr.P.C. needs to be made so as to ensure that Article 21 is followed both in letter and in sprit. “A speedy trial” is the essence of companion in concept in “fair trial”. Both being inalienable jurisprudentially, the guarantee under Article 21 of the Constitution of India embraces both life and liberty of the accused as well as interest of the victim, his near and dear ones as well as of the community at large and, therefore, cannot be alienated from each other. A fair trial includes fair investigation as reflected from Articles 20 and 21 of the Constitution of India. If the investigation is neither effective nor purposeful nor objective nor fair, the courts may if considered necessary, may order fair investigation, further investigation or reinvestigation as the case may be to discover the truth so as to prevent miscarriage of justice. However, no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case. 33. Fair and proper investigation is the primary duty of the investigating officer. However, no hard and fast rules as such can be prescribed by way of uniform and universal invocation and decision shall depend upon facts and circumstances of each case. 33. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police force is invested with powers of investigation of a crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such 29 acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Proper result must be obtained by recourse to proper means, otherwise it would be an invitation to anarchy, vide Rampal Pithwa Rahidas vs. State of Maharastra 1994 Suppl, (2) SCC 73 (para-37). Investigation must be fair and effective and must proceed in the right direction in consonance with the ingredients of the offence and not in a haphazard manner moreso in serious case. Proper and fair investigation on the part of the investigating officer is the backbone of rule of law vide Sasi Thomas vs. State (2006) 12 SCC 421 (para-15 and 18). 34. Therefore, considering the fact and circumstances of the case in its entirety and applying the principles of law aforenoted, we direct the respondent no.5 to investigate forthwith in FIR No. 0038/2021, dated 12.02.2021 under Sections 302, 394, 452 & 504 I.P.C. P.S. - Baksa, District – Jaunpur, and accordingly investigation is transferred/entrusted forthwith to the respondent No.5. The respondent nos. 1, 2, 3 & 4 shall ensure that the entire evidences and papers relating to the aforesaid case crime/FIR are transferred to Investigating Officer of the respondent No.5 for investigation. An affidavit of compliance shall be filed on behalf of the respondent no.5 and also by the State-respondents on or before the next date fixed. 35. Put up as a fresh case on 20.09.2021 at 02:00 P.M. before this bench for further hearing.