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2023 DIGILAW 1688 (ALL)

Satyam Singh v. State Of Uttar Pradesh

2023-07-14

SHAMIM AHMED

body2023
JUDGMENT : 1. Counter affidavit filed on behalf of State is already on record and in reply thereto, the learned counsel for the appellant has filed rejoinder affidavit today in Court, which is taken on record. 2. Shri Alok Srivastava, the learned counsel for the opposite party No. 2 was already granted time to file counter affidavit on 02.03.2023, since then the case listed 3-4 times, but he has not filed any counter affidavit. He submits that he will argue the matter in absence of any counter affidavit. 4. Heard Shri Amrendra Nath Singh, learned Senior Advocate, assisted by Shri Ravi Kant Pandey, the learned counsel for the appellant, Ms. Shikha Sinha, the learned A.G.A. for the State-opposite party No. 1 as well as Shri Alok Srivastava, the learned counsel for the opposite party No. 2 and perused the record. 5. The present criminal appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant-Satyam Singh, against the impugned order dated 28.05.2021 passed by the court of learned Special Judge, SC/ST Act, Gonda in Bail Application No. 1193 of 2021, arising out of Case Crime No. 85 of 2021, under Sections 306, 376(2) I.P.C. read with Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67 of I.T. Act, Police Station Tarabganj, District Gonda, whereby bail application of the appellant has been rejected. 6. Learned counsel for the appellant submits that appellant is a student of B.Sc. in a reputed college and was pursuing his studies. He has falsely been implicated in the present case due to enmity and village party bandi. The entire allegation as levelled by the prosecution against the appellant is false and fabricated and has been made only with intention to ruin the entire future of the appellant. 7. in a reputed college and was pursuing his studies. He has falsely been implicated in the present case due to enmity and village party bandi. The entire allegation as levelled by the prosecution against the appellant is false and fabricated and has been made only with intention to ruin the entire future of the appellant. 7. Learned counsel further submits that the first information report was lodged by the opposite party No. 2-Pappu Paswan against the appellant on 24.03.2021 at 03:19 a.m. showing the incident of 23.03.2021, under Section 306 I.P.C. read with Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act at Police Station Tarabganj, District Gonda, alleging therein that in the intervening night of 23/24.03.2021 brother-in-law of his brother, Pujari, called him on his mobile to talk with his sister, over which he went to the house of his brother, then neighbour informed him that wife and daughter of his brother, namely, Phoola Devi and Khushboo had gone towards field, then he went in their search towards south side and saw that in the field of Ishardeen Paswan from the tree of jackfruit (Katahal), wife and daughter of his brother were hanging. On account of harassment of Satyam Singh, wife and daughter of his brother namely Phoola Devi and Khusboo hanged themselves and committed suicide. 8. Learned counsel for the appellant further argued that the first information report was lodged after a much delay without giving any plausible explanation. On the information of death of both the deceased the police of Police Station Tarabaganj came and conducted inquest proceedings and prepared inquest report, thereafter, the dead bodies of both the deceased were sent for postmortem examination, which was done on 24.03.2021. 9. Learned counsel for the appellant further submits that as per the postmortem report of the deceased-Khushboo, her cause of death was found to be asphyxia due to ante mortem hanging with one ligature mark of size 29.0 c.m. x 1.5 c.m. all around the neck, which is mentioned at page-59 of the paper book of the present appeal. He further submits that the concerned doctor has opined that no external and internal injury seen on genitals, hymen was torn and uterus was non gravid. This report is given at page-60 of the paper book. He further submits that the concerned doctor has opined that no external and internal injury seen on genitals, hymen was torn and uterus was non gravid. This report is given at page-60 of the paper book. Thus, learned counsel for the appellant submits that as per the post mortem report cause of death of the deceased-Khushboo is asphyxia due to hanging without any injuries. 10. Learned counsel for the appellant further submits that postmortem of the deceased-Phoola Devi was also conducted, in which apart from one ligature mark of size 30.0 c.m. x 1.0 c.m. all around the neck, three other simple injuries were seen on the left knee. 11. Learned counsel for the appellant further submits that there is no role of the appellant in the death of above two deceased and the appellant has falsely been implicated in the present case. 12. Learned counsel for the appellant further submits that the statement under Section 161 Cr.P.C. of the complainant, namely, Pappu Paswan was recorded by the Investigating Officer on 24.03.2021 in which he has also made suspicion that some photographs and video clip was prepared by the appellant and he was having affairs with the deceased-Khushboo and in the garb of that video clip and photographs the appellant was blackmailing her, thus, due to this humiliation she committed suicide. But in his statement recorded under Section 161 Cr.P.C. the complainant-Pappu Paswan has not disclosed which type of video or clip of deceased-Khushboo was made by the appellant, or whether he had seen the same from his own eyes or any other villager had seen any obscene video clip or photographs of the said deceased. Thus, it has been argued by the learned counsel for the appellant that on the basis of suspicion the entire statement has been made by the complainant. 13. Learned counsel for the appellant further submits that thereafter statement of wife of the complainant, namely Smt. Mala Devi was also recorded in which she has also stated that there was some affair of appellant with the deceased-Khushboo, he used to torture the deceased-Khushboo and also made physical relations with her and made video clip and also took some photographs, and he also threatened the deceased to make viral the said video clip and photographs. Learned counsel further argued that in her entire statement Smt. Mala Devi has not stated that she had ever seen any video clip or photograph of appellant along with the deceased-Khushboo or had ever seen them in a compromising situation. 14. Learned counsel for the appellant further submits that Smt. Mala in her statement has further stated that the appellant had committed rape of the deceased-Khusbhoo several times, but no any F.I.R. or complaint was ever made by the deceased-Khushboo or her family members against the appellant to the police, which also falsifies the statement of Smt. Mala Devi and thus it shows that appellant has first time falsely been implicated in the case. 15. Learned counsel for the appellant further submits that the reasons of death of deceased is totally unknown. However, there was some property dispute that is why both were killed by their family members. 16. Learned counsel for the appellant further submits that another witness, namely, Km. Reena in her statement recorded under Section 161 Cr.P.C. has also repeated the same version as given by Smt. Mala Devi in her statement recorded under Section 161 Cr.P.C., but she has not stated anything that she had seen any video clip or photograph of appellant along with the deceased-Khushboo in a compromising situation. 17. Learned counsel for the appellant further submits that the statement of witness, namely, Mohit, who is husband of the deceased-Khushboo, was also recorded under Section 161 Cr.P.C. on 07.05.2021, in which to save his skin he stated first time that he had received one video clip from the appellant which after seeing it he had deleted, but he has not informed the police earlier regarding this video clip. He has only stated that the appellant made physical relations with his wife-Khushboo, but he has not ever made any complaint or lodged the F.I.R., thus, the statement given by the husband of the deceased appears to be doubtful and it is not possible that the husband keep quite on the obscene video of her wife with the appellant and does not take legal action against the culprit. 18. 18. Learned counsel for the appellant further submits that none of the villagers or any independent person had ever seen any viral video clip or photograph of appellant and the deceased-Khushboo, nor any such complaint was ever made by the police that some video or photograph were taken by the appellant on his mobile phone and on the basis of which he was threatening her to viral the same and was humiliating the deceased-Khushboo. 19. Learned counsel for the appellant further submits that in para-24 of the affidavit filed in support of the bail application it is clearly stated that no any obscene video allegedly prepared by the appellant is on the record, but the Investigating Officer has wrongly submitted the charge sheet under Section 67 of the I.T. Act, and in reply to para-24 of the aforesaid affidavit, learned A.G.A. has given its reply in para-12 of counter affidavit in which there is no any specific denial of the said averment and only a vague statement has been given. 20. Learned counsel for the appellant further submits that the statement of the Investigating Officer was also recorded before the court below in which he has stated that he recovered the mobile phone of the appellant on 18.05.2021 from his house, the appellant was not present but his mother handed over one Redmi blue colour mobile phone which he has taken without putting the same in sealed cover and send it the same to the forensic lab. Thus, it has been argued that authenticity of the alleged report of forensic laboratory is doubtful as the said mobile phone was not given to the same in sealed cover, which fact has been stated in page-13 and 14 of the rejoinder affidavit. Thus, it has been argued that entire case as set up by the prosecution is false and fabricated. The appellant is a student and no such incident happened and he has falsely been implicated in the present case, thus, the bail application of the present appellant may be allowed by this Court sympathetically and the impugned bail rejection order passed by the trial court may be set aside. 21. Learned counsel for the appellant further submits that it is a case of circumstantial evidence, there is no independent eye witness of the alleged crime, even though informant and other witnesses are not the eye witness. 21. Learned counsel for the appellant further submits that it is a case of circumstantial evidence, there is no independent eye witness of the alleged crime, even though informant and other witnesses are not the eye witness. The chain of circumstances are not complete. 22. Learned counsel for the appellant while placing reliance upon the judgment of Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 has further argued that no one had seen the commission of crime, there is no connecting link to indicate the involvement of applicant in the commission of crime, it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the applicant in the present crime. 23. Learned counsel for the appellant further submits that applicant has never abetted both the deceased to commit suicide. From perusal of F.I.R. and from the statements of complainant and other witnesses no case under Section 306 I.P.C. is made out. Even prosecution has failed to proof that case under Section 306 I.P.C. is made out as the essential ingredients for proving the said provisions are not fulfilled either on perusal of the F.I.R. or on perusal of statements of complainant and witnesses. The entire prosecution story is false and fabricated and has been cooked up with malafide intention. 24. Learned counsel for the appellant further submits that in the light of the statement of complainant and other witnesses even assuming to the said allegations to be a gospel truth, the same will not constitute offence under Section 306 IPC read with Section 107 IPC. He argues that the scope of Section 306 IPC has been duly considered by the Hon'ble Supreme Court in the case of Ude Singh and others vs State of Haryana; (2019) 17 SCC 301 . 25. Learned counsel for the appellant further submits that provisions of Section 3(2)(5) of S.C./S.T. Act are not attracted in the present case as in the entire statements of complainant and other witnesses there is no whisper that none of the villagers or any independent person had ever seen any video clip or photograph of appellant and the deceased-Khushboo, on the basis of which it can be said that appellant was threatening her to viral the same and was humiliating the deceased-Khushboo. In support of his arguments, the learned counsel for the appellant while referring the judgment of Hon'ble Supreme Court in the case of Hitesh Verma Vs. State of Uttarakhand and another, (2020) 10 SCC 710 . Thus, it has further been argued that the applicant has falsely been implicated with malafide intention. 26. Learned counsel for the appellant further submits that the appellant is in jail since 25.03.2021 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :- "2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad." 27. Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463 , and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:- "2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly." 28. Learned counsel for the appellant further submits that ratio of law applicable in above those cases is also applicable in the case of the appellant, therefore, the appellant may be enlarged on bail by this Court sympathetically. 29. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant 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 appellant 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 having criminal history of one case, which has been explained in para-32 of the affidavit filed in support of the bail application. It has further been argued that appellant is in jail since 25.03.2021 and that in the wake of heavy pendency of cases in the court, there is no likelihood of any early conclusion of trial. 30. Learned A.G.A. for the State submits that bail application of the appellant may be rejected as there is evidence against the appellant. 31. Shri Alok Srivastava, the learned counsel for the opposite party No. 2 submits that appellant is involved in heinous crime, therefore, his bail application may be rejected. 32. 30. Learned A.G.A. for the State submits that bail application of the appellant may be rejected as there is evidence against the appellant. 31. Shri Alok Srivastava, the learned counsel for the opposite party No. 2 submits that appellant is involved in heinous crime, therefore, his bail application may be rejected. 32. 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, nature of evidence, period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering that none of the villagers or any independent person had ever seen any viral video clip or photograph of appellant and the deceased-Khushboo, nor any such complaint was ever made by the police that some video or photograph were taken by the appellant on his mobile phone and on the basis of which he was threatening her to viral the same and was humiliating the deceased-Khushboo; further Mohit who is husband of the deceased-Khushboo had stated that he had received one video clip from the appellant which after seeing it he had deleted, but he had not informed the police earlier regarding this video clip and had also stated that the appellant made physical relations with his wife-Khushboo but he has not ever made any complaint or lodged the F.I.R., thus, there appears force in the argument of learned counsel for the appellant that the statement given by the husband of the deceased appears to be doubtful and it is not possible that the husband keep quite on the obscene video of her wife with the appellant and does not take legal action against the culprit; further the Investigating Officer in his statement recorded before the court below has stated that after recovering the mobile phone of appellant from his house which was handed over by the mother of appellant he without putting the same in sealed cover send it to the forensic lab, thus there appears force in the argument of learned counsel for the appellant that authenticity of the alleged report of forensic laboratory is doubtful; there appears force in the submission of learned counsel for the appellant that as per the version of the F.I.R. and as per the statements of complainant and other witnesses no case under Section 306 I.P.C. is made out as essential ingredients for proving the said offence are not fulfilled; there appears also force in the submission of learned counsel for the appellant that in the entire statements of complainant and other witnesses there is no whisper that none of the villagers or any independent person had ever seen any video clip or photograph of appellant and the deceased-Khushboo, on the basis of which it can be said that appellant was threatening her to viral the same and was humiliating the deceased-Khushboo, thus, provisions of Section 3(2)(5) of S.C./S.T. Act are also not attracted and also chain of circumstances are not complete and thus it is a case of circumstantial evidence; further considering 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 Sharad Birdhichand Sarda (supra), Ude Singh and others (supra), Hitesh Verma (supra), Kamal (supra), Takht Singh (supra) and Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22 , this Court is of the view that the learned trial court has failed to appreciate the material available on record. Thus, the impugned bail rejection order passed by the trial court is liable to be set aside. 33. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 28.05.2021 passed by the court of learned Special Judge, SC/ST Act, Gonda in Bail Application No. 1193 of 2021, arising out of Case Crime No. 85 of 2021, under Sections 306, 376(2) I.P.C. read with Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67 of I.T. Act, Police Station Tarabganj, District Gonda, is hereby set aside and reversed. 34. Let the appellant, Satyam Singh, be enlarged on bail in Case Crime No. 85 of 2021, under Sections 306, 376(2) I.P.C. read with Section 3(2)(5) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Section 67 of I.T. Act, Police Station Tarabganj, District Gonda, with the following conditions:- (i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned. (ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:- (a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter. (b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and (c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (iii) The appellant shall cooperate with investigation /trial. (iv) The appellant 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. 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. (v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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. (vii) The appellant 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 appellant 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. 35. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.