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2023 DIGILAW 560 (UTT)

Vijay Joshi v. State of Uttarakhand

2023-10-03

ALOK KUMAR VERMA

body2023
JUDGMENT : Alok Kumar Verma, J. These two Bail Applications have been filed for grant of regular bail in connection with the Case Crime No.223 of 2021, registered at police station Doiwala, District Dehradun. Applicants are in judicial custody under Sections 120B, 201, 302 and Section 365 of the Indian Penal Code, 1860 (for short, “IPC”). 2. These two bail applications have arisen from one case crime number i.e. Case Crime No.223 of 2021, therefore, these two bail applications are being considered and decided by this common order. Record of the BA1 No.1391 of 2022 will be leading file. 3. As per the case of the prosecution, informant Pareshwar Prasad Sharma’s uncle Shubhash Chandra Sharma, aged about 62 years, went for a walk as usual on 30.08.2021 at around 5-6 hrs. At that time, he had Mobile Phone Number 7818998486 and Mobile Phone Number 9756263711, which were switched off. Therefore, a missing report was registered under Section 365 IPC on 11.09.2021. 4. On the information of Virendra Kumar, Forest Beat Officer, a naked decomposed dead body was recovered from the bushes on 14.09.2021. Inquest proceeding of the recovered dead body of unknown person, aged about 55-60 was conducted on 14.09.2021 and post-mortem examination of the unknown dead body took place on 17.09.2021. The post-mortem report states, “the cause of death could be examined hence body part (index finger and tooth) has been preserved for DNA analysis”. A C.C.T.V. footage was recovered during the investigation. In the C.C.T.V. footage, Shubhash Chandra Sharma was seen entering to the hosue of the applicant – Vijay Joshi at 16:53 hrs. on 30.08.2021. Applicant – Vijay Joshi was arrested on 17.10.2021. He confessed the offence and at the instance of the applicant – Vijay Joshi, clothes, an Aadhar Card of the deceased and a rope were recovered from the bushes. The name of the applicant - Virendra alias Ravinder came to light in the confessional statement of the applicant – Vijay Joshi. Applicant - Virendra alias Ravinder was arrested on the same day i.e. 17.10.2021 and at his instance, two cheque books and two passbooks of the deceased were recovered from his house. Shubhash Chandra Sharma’s brother’s blood was sent to the Forensic Science Laboratory. As per the report of the laboratory, the unknown dead body could not be identified from the received blood sample. Charge-sheet was filed after completion of investigation. 5. Mr. Shubhash Chandra Sharma’s brother’s blood was sent to the Forensic Science Laboratory. As per the report of the laboratory, the unknown dead body could not be identified from the received blood sample. Charge-sheet was filed after completion of investigation. 5. Mr. Sandeep Tandon, Advocate, and Mr. Lokendra Dobhal, Advocate, contended that the family members of Shubhash Chandra Sharma were present at the time of preparation of inquest report, even then they failed to identify the dead body. Nothing had been recovered on the pointing out of the applicants. Applicants had no motive to commit the murder of Shubhash Chandra Sharma. Certificate under Section 65B of the Indian Evidence Act, 1872 has not been filed by the Investigating Officer, therefore, the said C.C.T.V. footage can not be relied upon. There is no credible evidence on record to connect the involvement of the applicants with the alleged offence. The entire prosecution case is based upon the circumstantial evidence. The chain of circumstances are not complete. Prosecution has examined six witnesses, therefore, there is no chance of tampering with the evidence. Applicants are permanent residents of District Dehradun, therefore, there is no chance of their absconding. Applicants have no criminal history, and, they are in custody since 17.10.2021. 6. Learned counsel for the State has opposed the bail application. However, he has fairly conceded that the certificate under Section 65B of the Indian Evidence Act, 1872 has not been submitted by the Investigating Officer and the family members of Shubhash Chandra Sharma were present at the time of inquest proceeding, but, the dead body was not identified by them. 7. Bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused. 8. Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case, there is no reason to keep the applicants behind the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicants deserve bail at this stage. 9. The Bail Applications are allowed. 10. 9. The Bail Applications are allowed. 10. Let the applicants – Vijay Joshi and Virendra alias Ravinder be released on bail on their executing personal bonds and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned 11. A copy of this order be placed on the record of BA1 No.2291 of 2022.