Allahabad High Court
Amit Kesharwani vs State Of U.P. on 2 February, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44990 of 2022 Applicant :- Amit Kesharwani Opposite Party :- State of U.P. Counsel for Applicant :- Jeevanjee Srivastava Counsel for Opposite Party :- G.A.,Dewarshi Kumar Rai,Mukesh Kumar Pandey Hon'ble Ajai Kumar Srivastava-I,J.
Heard Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Jeevan Jee Srivastava, learned counsel for the applicant, Sri Ravi Prakash Bhatt, learned A.G.A. for the State, Sri Mukesh Kumar Pandey, learned counsel for the complainant and perused the entire record.
The instant application for bail has been moved on behalf of the applicant, Amit Kesharwani with the prayer to enlarge him on bail in F.I.R./ Case Crime No.84 of 2022, under Sections 364, 302, 201 and 34 I.P.C., Police Station Kotwali, District Prayagraj, during pendency of the trial.
Learned Senior Advocate for the applicant has submitted that the first information report is based on false and fabricated facts. The accused/ applicant is innocent who has been falsely implicated in this case.
His further submission is that initially a first information report came to be lodged by the first informant, Jitendra Kesarwani on 03.04.2022 against some unknown persons for the offence under Section 365 I.P.C. stating therein that his son/ deceased, Adarsh Kesarwani had gone missing since 01.04.2022. Subsequently, upon recovery of dead body of the deceased and on the basis of confessional statements of the present applicant and co-accused, Tejas Chopra @ Bittu during investigation, the role of the present applicant came to fore.
His next submission is that, in fact, there is no admissible evidence against the present applicant. Despite this fact, a charge sheet came to be laid against him. He has also submitted with utmost vehemence that if the prosecution case is taken to be correct on the face of it, the present applicant is sated to have carried the dead body of the deceased in a car and which, as per his own confessional statement, he ultimately disposed of by throwing the dead body of the deceased at a place, which is different from the place mentioned in the inquest report with a view to cause disappearance of evidence which attracts Section 201 I.P.C. only.
His further submission is that even for the sake of argument, a person, who is stated to have disposed of dead body of the deceased in aforesaid manner, cannot, per se, be held to be an accused for an offence under Section 302 I.P.C. as there is no evidence regarding complicity of the present applicant in alleged killing of the deceased.
He has then contended that the entire prosecution case rests upon the circumstantial evidence and there is no eye witness of the alleged killing of the deceased by the applicant.
Learned Senior Advocate for the applicant has also drawn attention of this Court to the fact that had the dead body of the deceased been thrown from the hill top as allegedly disclosed by the accused in his own confessional statement, the dead body ought to have received other postmortem injuries also besides only two antemortem injuries mentioned in the postmortem report. Absence of any such postmortem injury on the person of the deceased falsifies the prosecution story insofar as it relates to the present applicant.
His further submission is that according to prosecution story and the evidence collected so far, the case of the co-accused, Monu Saraswat, who was allegedly having any motive, is distinguishable from the present applicant.
Learned Senior Advocate has also submitted that the co-accused persons, namely, Sumit Chaurasia @ Atharv Chaurasia and Komal Saraswat, who is, ofcourse, a lady, have already been granted bail by the coordinate Bench of this Court vide order dated 12.01.2023 passed in Criminal Misc. bail Application No.45492 of 2022 titled as Sumit Chaurasia @ Atharv Chaurasia and vide order dated 11.01.2023 passed in Criminal Misc. Bail Application No.35207 of 2022 titled as Komal Saraswat vs. State of U.P. Learned counsel for the applicant has also submitted that the accused/ applicant is languishing in jail since 05.07.2022 who has no previous criminal history.
His further submission is that in case, the applicant is enlarged on bail, he will not misuse the liberty of bail and he will also fully cooperate with the trial court in getting the trial concluded expeditiously. He has also submitted that the applicant will not intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.
Per contra, learned A.G.A. for the State and learned counsel for the complainant have vehemently opposed the prayer for grant of bail by submitting that though the prosecution case is based on circumstantial evidence, however, the fact that the dead body of the deceased has been recovered on the pointing out of the present applicant, does provide a distinct evidence which completes the chain of circumstances against the present applicant in view of his own confessional statement and also in view of the confessional statement of co-accused, Tejas Chopra @ Bittu.
Their next submission is that the submission of learned Senior Advocate for the applicant to the effect that the place where the dead body of the deceased was thrown by the present applicant according to his own confessional statement and the place of recovery of dead body of the deceased has shown in the inquest report are too distinct and different places, is not correct and, therefore, arguments of learned Senior Advocate for the applicant to the contrary is not sustainable also.
Their further submission is that the dead body, which was recovered, was in a decomposed condition, therefore, it cannot be said that the same was not thrown from the hill top. They have also submitted that the case of the present applicant is not identical to the co-accused, Komal Saraswat, who is a lady and Sumit Chaurasia @ Atharv Chaurasia whose case is different and distinguishable. Therefore, they submit that having regard to the complete chain of events against the present applicant, he does not deserve to be enlarged on bail.
Having heard the learned Senior Advocate for the applicant, learned A.G.A. for the State, learned counsel for the complainant and upon perusal of record, it transpires that initially a first information report came to be lodged by the first informant, Jitendra Kesarwani on 03.04.2022 against some unknown persons for the offence under Section 365 I.P.C. stating therein that his son/ deceased, Adarsh Kesarwani had gone missing since 01.04.2022. Subsequently, his dead body was recovered on 21.04.2022. According to postmortem report of the deceased, one contusion and one laceration are reported on the person of the deceased. The name of the accused/ applicant surfaced after three days of the incident in the statement recorded by the investigating officer of Renu, mother of the deceased. The Evidence available against the present applicant is the inculpatory confessional statements of the present applicant and Tejas Chopra alias Bittu. There is no injury mentioned on the person of the deceased which might lead to the inference that dead body of the deceased was thrown from the hill top. In the postmortem report, no other injuries except aforesaid two injuries reported on the person of the deceased. The accused/ applicant is languishing in jail since 05.07.2022 who has no previous criminal history.
Thus, having regard to overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties, the nature of offence, evidence regarding the complicity of applicant and without expressing any opinion on the merit of the case, a case for bail is made out. The bail application is, thus, allowed.
Let the applicant, Amit Kesharwani be released on bail in the aforesaid case on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial;
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment;
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail;
4. The applicant 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 them from disclosing such facts to the Court or to any police officer;
5. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, in case the witnesses are present in court;
6. The applicant shall remain present, in person, 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, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
The learned trial court is also directed to proceed with the trial of the aforesaid case and conclude the same expeditiously and preferably within a period of one year from the date of production of certified copy of this order, in accordance with law, without granting any unnecessary adjournments to the parties, if there is no other legal impediment.
It is made clear that the trial of the aforesaid case shall be conducted without being influenced by any observation made herein above which are confined to the disposal of the instant application for bail.
(Ajai Kumar Srivastava-I, J.) Order Date :- 2.2.2023 cks/-