Allahabad High Court
Mohar Singh @ Vaidh Ji vs State Of U.P. And Another on 10 April, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48303 of 2022 Applicant :- Mohar Singh @ Vaidh Ji Opposite Party :- State of U.P. and Another Counsel for Applicant :- Shyam Shankar Shukla,Sadashiv Tripathi Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J.
Heard Mr. Jai Shankar Audichya, learned counsel for the applicant and learned A.G.A. for the State.
The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant-Mohar Singh @ Vaidh Ji with a prayer to release him on bail in Case Crime No. 508 of 2021, under Sections 364, 120-B, 302, 201 and 34 I.P.C., Police Station-Civil Lines, District-Aligarh, during the pendency of trial.
As per prosecution case in brief, informant-Rohan Singh, brother of the deceased has lodged an F.I.R. on 26.11.2021 regarding an incident that took place on 15.11.2021 against unknown person alleging inter-alia that on 17.11.2021, he had lodged a missing report about his brother Nahar Singh at Police Station Civil Lines, District Aligarh but till date, his brother could not be traced out. He suspects that his brother has been kidnapped because he left the house on 15.11.2021 at 06:45 o'clock but did not return to home.
It is argued by learned counsel for the applicant that in this case, a missing report was lodged on 17.11.2021 regarding an incident dated 15.11.2021 and thereafter F.I.R. of the said incident was lodged after eight days on 26.11.2021 against unknown persons. For the first time, name of the applicant came into light in the statement under Section 161 Cr.P.C. dated 27.11.2021 of the informant-Rohan Singh, in which he stated inter-alia that he suspects that his brother has been kidnapped by Ajay Pal Singh Jadaun and Baidya ji @ Mohar Singh (present applicant) because there was a dispute of money between Ajay Pal Singh Jadaun and the deceased but no material has been collected by the investigating officer in this regard and even the basis of his suspicion as well as source of information about the said dispute has also not been disclosed by the informant. It is next submitted that from 23.11.2021 to 03.12.2021, Ajay Pal Singh Jadaun was in Goa and he was arrested by the police from Goa on 03.12.2021 who in his confessional statement disclosed his involvement along with present applicant-Mohar Singh. Thereafter, on 14.12.2021, Mohar Singh (present applicant) was arrested and it is alleged that he, in his confessional statement, also disclosed his involvement along with the co-accused Ajay Pal Singh Jadaun and his nephew Pankaj Jadaun in committing the murder of deceased. Thereafter, on 14.12.2021, on the pointing out of the applicant, one decomposed dead body was recovered by digging the soil in the south direction of fishing pond, which was identified by the family members of the informant as the dead body of the deceased-Nahar Singh on the basis of white spot, his blue colour shoes and one key of motorcycle. After the said recovery, investigating officer has asked Praveen (nephew of the deceased) to get the DNA examination of the recovered dead body conducted, but he refused by stating that when he asked his counsel about the DNA examination, he said that there is no need for the DNA examination. Much emphasis has been given by contending that the identity of the recovered decomposed dead body is wholly doubtful otherwise there was no valid reason for the complainant's side to refuse for getting the DNA test of the decomposed dead body conducted. It is argued that as per alleged confessional statement of the applicant-Mohar Singh, deceased died due to gun shot injury caused by Pankaj while as per the confessional statement of Pankaj, he caused injury to the deceased by stick. Referring the postmortem report dated 14.12.2021, it is submitted that no gun shot wound was found on the body of the deceased. The time of death, as mentioned in the postmortem report dated 14.12.2021 is 15 days back, which also does not match to the date of incident i.e. on 15.11.2021, because as per postmortem report, the incident took place on 29.11.2021. On 19.12.2021, police, in order to implicate co-accused Ajay Pal Singh Jadaun, falsely shown the recovery of licencee revolver of the deceased at the pointing out of Ajay Pal Singh Jadaun from an open place which can be easily planted after taking the revolver of the deceased from his family members. It is also pointed out that recovery of revolver has been shown by the police on 19.12.2021 but three days before the recovery, news for recovery of revolver had already been published on 16.12.2021 in news paper, which is also indicative of the false implication of the accused persons. As per the CDR collected by the investigating officer, there was no prior telephonic conversations between the applicant and co-accused Ajay Pal Singh Jadaun and Pankaj. Recovery of a danda has also been shown at the pointing out of co-accused Pankaj.
On the strength of aforesaid facts, main substratum of argument of learned counsel for the applicant is that except the confessional statement of Ajay Pal Singh Jadaun, applicant (Mohar Singh) and Pankaj Singh in police custody, there is no direct or indirect corroborative and credible material against the applicant. It is a case of circumstantial evidence and complete chain of circumstantial evidence is missing. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. Applicant has no criminal history to his credit and is languishing in jail since 14.12.2021 and in case, applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant by contending that the statement under Section 161 Cr.P.C. of the informant was recorded on 27.11.2021 in which he has taken the name of Ajay Pal Singh Jadaun stating inter-alia that there was a dispute of money between Ajay Pal Singh Jadaun and Nahar Singh, therefore, he suspects that his brother has been abducted in collusion with applicant-Mohar Singh. On 14.12.2021, one dead body was recovered from the pond, which was identified by the son of the informant as the body of the deceased. Thereafter, on 14.12.2021, Mohar Singh (present applicant) was arrested and he, in his confessional statement, stated inter-alia that he alongwith co-accused Ajay Pal Singh Jadaun and his nephew Pankaj Jadaun made a plan to eliminate the deceased Nahar Singh and to carry out this work, he called Nahar Singh by his cell-phone near graveyard situated at the station road and on the pretext of going to Hathras, he made him sit in the car, thereafter, headed towards Etah, Chungi. Ajay Pal Singh Jadaun and Pankaj were sitting at the rear seat of the car. Pankaj took out a pistol and shot Nahar Singh on his head due to which he died on the spot and dead body was kept for whole day in the car and later on dead body of Nahar Singh was buried near a pond after giving Rs. 55,000/- to the labourers Indal and Honey. Pursuant to the confessional statement of applicant-Mohar Singh, co-accused Pankaj was arrested on 16.12.2021 and he has also disclosed the modus-operandi adopted by the accused persons in eliminating the deceased. Much emphasis has been given by contending that applicant-Mohar Singh, in his confessional statement, has disclosed that he had taken an amount of Rs. 1,50,000/- from Ajay Pal Singh Jadaun to eliminate Nahar Singh.
Having heard the submissions of learned counsel for the parties and examined the record, I find that there is no eye witness of the incident. The applicant is not named in the F.I.R. whereas same has been lodged on 26.11.2021 after ten days of the incident dated 15.11.2021. First time informant, in his statement under Section 161 Cr.P.C. has taken the name of Ajay Pal Singh Jadaun and Baidya ji @ Mohar Singh (present applicant) and that too on the basis of suspicion that there was a dispute of money between the deceased and Ajay Pal Singh Jadaun but he did not provide any material or detailed facts during investigation in order to establish the money dispute between them, therefore, there is no material on record in support of alleged motive. It is also an admitted fact that a decomposed unknown dead body was recovered which was identified by the family members of the deceased as the body of the deceased but they did not agree for DNA examination of the dead body after taking legal consultation with his counsel. So far as the recovery of revolver on 19.12.2021 at the pointing out of the co-accused Ajay Pal Singh Jadaun is concerned, I also find that there is no independent witness of the said recovery and it is not a case of prosecution that the revolver of the deceased was also missing. Publication of recovery of revolver in question in news paper on 16.12.2021 three days prior to the alleged recovery also indicates that some thing is fishy in the matter and the said recovery does not inspire confidence. As per the postmortem report, cause of death of the deceased is intracranial haemorrhage as a result of blunt force impact sustained to head. Time of incident also do not match with the date of incident as mentioned in the F.I.R. There is major contradiction in the alleged confessional statement of applicant-Mohar Singh and co-accused Pankaj with regard to manner and weapon of assault. As per alleged confessional statement of applicant-Mohar Singh, deceased died due to gun shot injury caused by Pankaj whereas no gun shot injury was found on the body of the deceased. It is also admitted fact that as per CDR collected by the investigating officer, there was no telephonic conversation of Ajay Pal Singh Jadaun with the applicant-Mohar Singh and co-accused Pankaj. It is a case of circumstantial evidence as there is no direct evidence against the applicant. The confessional statement of accused in police custody is also inadmissible in evidence. It is well settled that in cases of circumstantial evidence, entire chain of circumstances on which conclusion of guilt is to be drawn, should be fully established and should not leave any reasonable ground of doubt. The further details relating to the incident need not be referred to herein since the allegations and the defence thereto is still open to be urged by the parties in the trial Court. Co-accused Ajay Pal Singh Jadaun has been granted bail vide order dated 23.08.2022 of this Court in Criminal Appeal No. 2644 of 2022.
Having regard to the facts and circumstances of the case, submissions of learned counsel for the parties as mentioned above and keeping in view the complicity of the accused and evidence collected during investigation, this Court is of the view that the applicant has made out a case for bail.
Accordingly, the instant bail application is allowed.
Let the applicant-Mohar Singh @ Vaidh Ji involved in the above case be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
(v) 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 him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
It is clarified that the observations made herein above are limited to the extent of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence to be adduced uninfluenced by anything observed in the order.
Order Date :- 10.4.2023 Saurabh