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2022 DIGILAW 33 (ALL)

Sumit Kumar @ Angrej v. State of U. P.

2022-01-06

SHAMIM AHMED

body2022
JUDGMENT : Shamim Ahmed, J. Heard Mrs. Neelam Verma, learned counsel for the applicant and learned A.G.A. for the State and perused the record. 2. Applicant has moved the present bail application seeking bail in Case Crime No. 98 of 2021 Under sections 302 and 201 I.P.C.,Police Station-Kheri, District Kheri. Learned counsel for the applicant submitted that as per the prosecution case on 9.3.2021 Ankit Singh (complainant) had registered a Gumsudgi report regarding missing of his brother namely Pinku Singh (deceased) who had left his house on 8.3.2021 at about 6.00 p.m. having mobile no. 9838642966 and did not return to his house till 9.45 p.m. On 11.3.2021, the corpse of the deceased was found in the field. Thereafter a first information report was lodged unknown on 13.3.2021 at 14.01 Hrs. registered as case crime no. 98 of 2021 under sections 302 and 201, Police Station-Kheri, District Kheri. 3. Learned counsel for the applicant further submitted that in the statement recorded under section 161 Cr.P.C. first time i.e. on 13.3.2021, complainant has stated that deceased used to do farming with the accused applicant taking agricultural land on contract. The deceased used to collect the money from the group of ladies who were members of a group and deposit the same with the Bank. The account was opened in the name of two ladies namely Pappi and Sunita. He further stated that deceased had left his house informing his wife Radha that he is going to meet to Badey alias Atul Kumar Shukla, who had called him and he will also come to Oeal Puliya on his motorcycle to pick him. 4. Learned counsel for the applicant further submitted that complainant neither in the said statement nor in the first information report made allegation of commission of murder of the deceased by the accused applicant. 5. Learned counsel for the applicant further submitted that in the statement recorded under section 161 Cr.P.C. first time on 14.3.2021, Radha wife of deceased has stated that deceased had gone to Khagi Oeal Puliya to meet to Badey alias Atul Kumar Shukla. On the said date, independent witness Ram Ratan and Veer Pal Singh have narrated the same version in the statement recorded under section 161 Cr.P.C. The name of the applicant was not taken by the wife of deceased. 6. On the said date, independent witness Ram Ratan and Veer Pal Singh have narrated the same version in the statement recorded under section 161 Cr.P.C. The name of the applicant was not taken by the wife of deceased. 6. Learned counsel for the applicant further submitted that on the basis of the call detail reports obtained it was found that the deceased had talked with Atul Kumar Shukla on 8.3.2021 at 6.42 p.m. Thereafter statement of Atul Kumar Shukla alias Badey was recorded under section 161 Cr.P.C. on 24.3.2021, in which he has neither stated anywhere about the alleged commission of murder of deceased nor he has taken the name of applicant regarding the alleged incident. 7. Learned counsel for the applicant further submitted that deceased's wife Radha in her statement recorded under section 161 Cr.P.C. on 5.5.2021 second time i.e. after about two months has stated that there was some money dispute between the accused applicant and deceased and raised suspicion that the applicant has committed murder of deceased. Independent witnesses namely Udai Veer Singh alias Surpanch and Arpit Singh who are her father and brother in their statements recorded under section 161 Cr.P.C. on 5.5.2021 have narrated the same version. 8. Learned counsel for the applicant further submitted that complainant in the second statement recorded under section 161 Cr.P.C. on 29.5.2021 raised suspicion on one Ram Dularey and not on the present applicant. On 27.7.2021 deceased's wife Radha gave an application to the I/c Inspector, Police Station Kheri, District Kheri alleging therein that applicant has committed murder of the deceased and he has also confessed his guilt before Rahul Singh alias Dhirendra Singh (husband of the younger sister of deceased's wife). Radha, wife of deceased in the third statement recorded under section 161 Cr.P.C. on 27.7.2021 narrated the same story of application dated 27.7.2021. Witness Rahul alias Dhirendra Singh in his statement recorded under section 161 Cr.P.C. on 27.7.2021 has stated that applicant has confessed his guilt before him regarding commission of alleged offence. 9. Learned counsel for the applicant further submitted that accused applicant was not named in the first information report and his name surfaced in the application dated 27.7.2021 of the deceased's wife and the statement of her brother-in-law namely Rahul alias Dhirendra Singh recorded under section 161 Cr.P.C. on 27.7.2021. 10. 9. Learned counsel for the applicant further submitted that accused applicant was not named in the first information report and his name surfaced in the application dated 27.7.2021 of the deceased's wife and the statement of her brother-in-law namely Rahul alias Dhirendra Singh recorded under section 161 Cr.P.C. on 27.7.2021. 10. Learned counsel for the applicant further submitted that neither the applicant was named nor any suspicion was raised against him in the first information report as well as in the statements of complainant and first statement of deceased's wife Radha recorded under section 161 Cr.P.C and first time his name was dragged in the present case through second statement of deceased's wife Radha only on the basis of suspicion on 5.5.2021. i.e. after about two months of the alleged incident. It is further submitted that the applicant has no motive to commit the crime in question and the alleged motive which has been assigned to the applicant to commit the crime in question is totally false and fabricated one, because no dispute had arisen between the applicant and deceased at any point of time, during life time of deceased. There are contradictions in the statements of the deceased's wife Radha, complainant and witnesses recorded under section 161 Cr.P.C. which create doubt on the allegations levelled against the accused applicant. 11. Learned counsel for the applicant further submits that applicant has falsely been implicated in the present case. The post-mortem report of the deceased does not confirm the incident. As per statements of the aforesaid witnesses recorded under Section 161, there is no eye witness to the above incident. He further submits that the whole prosecution story is false and concocted. 12. The submission of the learned counsel for the applicant is that it is a case based on circumstantial evidence. The circumstances appearing against the applicant are no more than his extra judicial confession. The applicant has neither been arrested from the alleged spot nor recovery of any incriminating evidence has been made by the police from the applicant or at his pointing out. The applicant has been roped in by the police on the basis of statement of Radha wife of the deceased recorded under section 161 Cr.P.C. on third time on 27.7.2021 and also the statement of brother in law of Radha namely Rahul alias Dhirendra Singh recorded under section 161 Cr.P.C. on 27.7.2021. The applicant has been roped in by the police on the basis of statement of Radha wife of the deceased recorded under section 161 Cr.P.C. on third time on 27.7.2021 and also the statement of brother in law of Radha namely Rahul alias Dhirendra Singh recorded under section 161 Cr.P.C. on 27.7.2021. The recovery memo is totally false. It is also argued that there is no incriminating evidence available on record about the applicant's involvement in the commission of alleged offence. He further submits that no offence under Sections 302 and 201 of I.P.C. is made out against the accused applicant. 13. Learned counsel for the applicant has relied upon the decision of the Hon'ble Supreme Court in the case of Balakrishna Tukaram Angre Vs. The State of Maharashtra in Criminal Appeal No. 1704 of 2017. In the said decision, the Hon'ble Supreme Court was pleased to observe that case of the prosecution rests on circumstantial evidence and the accused has been in custody for fifteen months. 14. The present case is being a case of the circumstantial evidence. It is well settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence; the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. In other words, there must be chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. All the links in the chain of circumstances must be complete and should be proved through cogent evidence. In the present case there is no continuing chain of evidence. 15. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. In the present case there is no continuing chain of evidence. 15. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. 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 and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 30.7.2021 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Learned A.G.A. opposed the prayer for bail. 16. 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, including 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 as also the charge has been framed against applicant, but prosecution has not produced any single witness against applicant till today, in particular, the fact that the case rests on circumstantial evidence, the fact that the evidence against the applicant is one of extra judicial confession alone with no independent evidence to prima facie indicate his complicity and in view of the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail. The prayer for bail is granted. The application is allowed. 17. The prayer for bail is granted. The application is allowed. 17. Let the applicant Sumit Kumar alias Angrej involved in Case Crime No. 98 of 2021 Under sections 302 and 201 I.P.C., Police Station Kheri, District Kheri be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions:- (1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever. (2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. (3) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (5) In case, the applicant misuses the liberty of bail during trial, 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. (6) The applicant shall remain present, 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. 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. (7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad. (8) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. 18. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 19. 18. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 19. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.