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2021 DIGILAW 1323 (ALL)

Arman Khan v. State Of U. P.

2021-11-10

VIKAS KUNVAR SRIVASTAV

body2021
JUDGMENT : 1. The present Criminal Appeal is moved under Section 14-A(2) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 against the bail rejection order dated 24.01.2020 passed by learned Special Judge (S.C/S.T. Act)/Additional Sessions Judge, Barabanki in Case Crime No.09/2020, under Section 302 of I.P.C. and Sections 3(2)(v) of the S.C./S.T. Act, Police Station Loni Katra, District Barabanki seeking bail. 2. Learned counsel for the appellant Sri Suhail Kashif, Advocate and learned A.G.A. for the State Sri Anurag Singh Chauhan, Advocate are present in the Court. 3. Heard the learned counsel for the appellant, learned A.G.A. for the State and perused the record. 4. The prosecution case in brief is that the informant/complainant of the case informed in writing to the local police station i.e. Police Station Loni Katra, District Barabanki that his son, namely, Kuldeep aged about 18 years in the evening of 05.01.2020, after having dinner, left the house but did not return. He could not be traced out despite immense search since night up to next morning. His phone number 7390081077 did not response being switched off on repeated dialing. In the morning of 06.01.2020 at about 09:00 A.M., a girl namely Sadhna D/o Sanjai Rawat when went to graze the grass from the grove of Mohd. Hanif, she found the dead body of the Kuldeep fell face down on the earth. She rushed up to the house of informant and told about the dead body of the deceased-Kuldeep. When the informant with his family members reached on the said grove, they found the dead body of the Kuldeep lying on earth and there was a cut injury at the left side of the neck. The informant suspected some unknown persons who killed his son by cutting throat and throwing the dead body in the grove of the Mohd. Hanif. 5. The information was registered as Case Crime No.09/2020, under Section 302 of I.P.C. and Sections 3(2)(v) of the S.C./S.T. Act, Police Station Loni Katra, District Barabanki, the police started investigation and sent the body for post mortem. 6. Hanif. 5. The information was registered as Case Crime No.09/2020, under Section 302 of I.P.C. and Sections 3(2)(v) of the S.C./S.T. Act, Police Station Loni Katra, District Barabanki, the police started investigation and sent the body for post mortem. 6. Learned A.G.A. for the State has filed the counter affidavit and produced the case diary before the Court, wherein, the statement recorded by the Investigating Officer of witnesses, namely, Ram Naresh (complainant / father of the deceased) and Ms.Kumari Sarita (Sister of the deceased) and some independent witnesses, namely, Ram Kishore Rawat, Bablu Rawat and etc. 7. From the statements of the witnesses recorded by the Investigating Officer, it comes out that prosecution has made up a case against present accused-appellant on the basis of two last seen witnesses connecting him from the offence. The sister of the deceased stated to the informant of the case after the cremation of the deceased that in the night of 05.01.2020 at about 08:00 P.M. to 09:00 P.M., a phone call was attended by the deceased, who respond the caller that he is just coming and when he was intercepted by the sister, not to go without having dinner, he told, will come back soon as Arman is calling him. This statement of father was recorded on 08.01.2020 and supported by the sister's statement that she was told by the deceased that telephone call was of Arman, who asked the deceased to come out of the home. 8. Another independent witness of last seen, Ram Kishore Rawat stated that in the night of 05.01.2020 at about 08:00 P.M. when he was standing in front of his house he saw the deceased-Kuldeep passing through the Roza Road, talking on his mobile phone and the accused-Arman was also going just behind him. He has also stated that accused-Arman and deceased-Kuldeep were swarm friends and used to work together wiring work in four wheelers. They used to be together mostly. This witness suspected that Arman might have committed murder of deceased-Kuldeep. 9. He has also stated that accused-Arman and deceased-Kuldeep were swarm friends and used to work together wiring work in four wheelers. They used to be together mostly. This witness suspected that Arman might have committed murder of deceased-Kuldeep. 9. Independent witness, Bablu Rawat has also affirmed the aforesaid statement, on the basis whereof, the accused was arrested and on his information and leading, the murder weapon i.e. blood stained knife, rod of shocker of motor cycle with stain of blood, broken mobile phone, battery of the phone and a sim card, were recovered and the same were identified by the father of the deceased. 10. The prosecution has collected the call record from the two phone numbers, one belonging to the deceased bearing phone number 7390081077 and another phone number 9305896702 identified to be of accused-Arman as it was attended by him on a random call made to him by the Investigating Officer. 11. Post mortem of the dead body of deceased-Kuldeep was performed between 4:00 P.M. to 5:00 P.M. on 06.01.2020. On the perusal of post mortem report, annexure no.3, the possible time of death is reported before one and half day approximately. It relates the time between 08:00 P.M. to 09:00 P.M. in the night of 05.01.2020 when the accused was last seen with the deceased when he was alive. 12. Perused the order of the Court passed over the bail application, moved on behalf of accused-appellant-Arman Khan before the trial judge, Special Court (S.C/S.T. Act)/Additional Sessions Judge, Barabanki, who rejected the same vide his order dated 24.01.2020 giving rise to the filing of appeal under Section 14-A(2) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. 13. The moot question in the appeal is that whether learned trial court has passed the impugned order wrongly and the accused-appellant had suitable cause for grant of bail during the pendency of the trial. There is principle of law established by Hon'ble the Apex Court. In the case of Prahlad Singh Bhati Vs. NCT, Delhi and Another reported in (2001) 4 SCC 280 , Hon’ble the Apex Court in para 8 has held as under:- “8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. NCT, Delhi and Another reported in (2001) 4 SCC 280 , Hon’ble the Apex Court in para 8 has held as under:- “8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 14. In view of the above, this is to be seen that whether the prosecution has made out a strong prima facie case against the accused-appellant which shows his complicity in the commission of the offence satisfactorily. The case before the trial judge and involved in this appeal put forth by the prosecution is simply based on statement of witnesses Ram Kishore Rawat and Bablu Rawat recorded under Section 161 Cr.P.C. with regard to seeing the deceased alongwith accused-appellant-Arman Khan in the night of 05.01.2020 when he was alive. Just after that the dead body of the deceased-Kuldeep was discovered in the grove of Mohd. Hanif in the village. The statement of this witness was connected with the statement of sister of the deceased, who stated that in the evening of 05.01.2020 at about 08:00 P.M., when her brother, the deceased-Kuldeep was on dinner, he attended a call from Arman, calling him to come at a place. 15. Hanif in the village. The statement of this witness was connected with the statement of sister of the deceased, who stated that in the evening of 05.01.2020 at about 08:00 P.M., when her brother, the deceased-Kuldeep was on dinner, he attended a call from Arman, calling him to come at a place. 15. The dead body of the deceased was found in the grove lying on the earth with cut injury on the left side of the neck and the post mortem report reveals the anti mortem injuries which are being given hereunder:- "1) A L.W. 6cm x 2.0cm around over top of Head, scalp deep, 14 cm. above from large of (Lt.) ear. 2) ALW 3.0cm x 1.0cm present over top of Head scalp deep 2cm around 10cm. Injury No.(1), larger & larches ent. 3) A lacerated wound 5.0cm x 2.0cm present over frond of upper neck 5.0cm above from sidetrack. 4) A lacerated wound 2.0 cm. x 1.0 cm bone deep present over (Lt) shoulder rigor 7.0cm below from tie of (Lt.) shoulder joint. 5) A lacerated wound 2.0cm x 1.0 cm present over (Lt) scapula rigor bone deep 5.0cm medial to injury no. (4) 6) A lacerated wound 3.0cm x 1.00cm present over (Lt) sidetrack Thorne cavity deep below from injury no.(5)." 16. The articles stained with blood recovered from the house of accused-appellant, thus, prima facie found linked from the anti mortem injuries found on the person of dead body. 17. All the lacerated wounds are suggestive of causing death due to hemorrhage. The arrest and recovery memo made by the police after the arrest of the accused on the prima facie evidence of his complicity in the offence lead the recovery of murder weapon i.e. blood stained knife, rod of shocker of motor cycle with stain of blood, broken mobile phone, battery of the phone and a sim card, identified by the complainant as of the deceased. The call details from the telecom department, which is electronic evidence to corroborate the statement made by the sister of the deceased about receiving call from Arman in the evening of 05.01.2020, asking the deceased to come out and accompany him is discussed in the impugned order. 18. The call details from the telecom department, which is electronic evidence to corroborate the statement made by the sister of the deceased about receiving call from Arman in the evening of 05.01.2020, asking the deceased to come out and accompany him is discussed in the impugned order. 18. Further, the statement of independent witnesses Ram Kishore Rawat and Bablu Rawat make possible and reliable the statement of sister of the deceased namely Kumari Sarita given to the police under Section 161 Cr.P.C. that call from Arman was attended on phone by the deceased as they were friends and work together of wiring of four wheelers and thus used to remain with each other mostly. Thus, there is no impossibility in the statement of relative witnesses and no contradiction with the statement of independent witness, therefore, prima facie case from statement against the complicity of the accused was sufficiently established by the prosecution. The motive, as also sufficiently explained by the prosecution that both i.e. the accused and the deceased were liking a same girl, for the reason of which, the accused thrashed against the deceased. 19. The parameters for grant of bail under Section 439 Cr.P.C. have been settled by Hon’ble the Apex Court in multiple number of cases, one of them is Ranjit Singh Vs. State of Madhya Pradesh and Others reported in (2013) 16 SCC 797 relying on the other supreme court cases on the subject. In para 20 and 21, it is held:- “20. In Chaman Lal v. State of U.P., this Court, while dealing with an application for bail, has stated that certain factors are to be borne in mind and they are: - “…. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.” 21. (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and (iii) prima facie satisfaction of the court in support of the charge.” 21. In Prasanta Kumar Sarkar v. Ashis Chatterjee, this Court, while emphasizing on the exercise of discretionary power generally has to be done in strict compliance with the basic principles laid down in plethora of decisions of this Court, has observed as follows: - “9… among other circumstances, the factors which are to be borne in mind while considering an application for bail are: i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence; ii) nature and gravity of the accusation; iii) severity of the punishment in the event of conviction; iv) danger of the accused absconding or fleeing, if released on bail; v) character, behavior, means, position and standing of the accused; vi) likelihood of the offence being repeated; vii) reasonable apprehension of the witnesses being influenced; and viii) danger, of course, of justice being thwarted by grant of bail.” 20. The learned trial judge while passing the impugned order has discussed all these things and there is no wrong or fault in passing the impugned order against the accused person. Moreover, the offence with which the accused-appellant is arraigned is serious enough and punishable under Section 302 I.P.C. in case of proving the same by cogent evidence before the trial judge, capital punishment or life imprisonment is warranted. The accused and witnesses are native of the same village, therefore, possibility of tampering with the evidence and adversely influencing the witnesses cannot be ruled out. 21. Moreover, the complainant and the other witnesses in case of release of the accused-appellant shall always be in the danger of their life as the accused with a view to save himself would have cause to vanish the evidence and even witnesses against him. Hon’ble the Supreme Court in case of Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and Another reported in (2012) 9 SCC 446 has held in para 18 and 19, which is quoted below:- “18. Hon’ble the Supreme Court in case of Ash Mohammad Vs. Shiv Raj Singh @ Lalla Babu and Another reported in (2012) 9 SCC 446 has held in para 18 and 19, which is quoted below:- “18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated: “Personal liberty is the right to act without interference within the limits of the law.” 19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act.” 22. On the basis of aforesaid discussions, the Criminal Appeal arising out of impugned order dated 24.01.2020 rejecting the appellant’s bail application, preferred under Section 14-A(2) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 for no force to be allowed, hence, the appeal is rejected. The Criminal Misc. Application No.20452 of 2020 under Section 389 Cr.P.C. shall also stands rejected in view of the rejection of the appeal. 23. However, learned trial court is directed to conclude the trial expeditiously, if possible, within one year from the date certified copy of the order is produced before it.