Allahabad High Court
Kamal Bihari Tripathi @ Bablu Vidhayak vs State Of U.P. on 22 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33299 of 2022 Applicant :- Kamal Bihari Tripathi @ Bablu Vidhayak Opposite Party :- State of U.P. Counsel for Applicant :- Krishna Dutt Awasthi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record.
2. Heard Mr. Krishna Dutt Awasthi, the learned counsel for applicant and the learned A.G.A. for State
3. Perused the record.
4. Instant bail application has been filed by applicant-Kamal Bihari Tripathi @ Bablu Vidhayak seeking his enlargement on bail in Case Crime No.56 of 2022 under Sections 376 302, 201 I.P.C., Police Station-Mau, District-Chitrakoot, during the pendency of trial.
5. Record shows that in respect of an incident, which is alleged to have occurred on 05.03.2022, a delayed F.I.R. dated 06.03.2022, was lodged by first informant-Rajoo (cousin brother of deceased) and was registered as Case Crime No.56 of 2022 under Sections 376 302, 201 I.P.C., Police Station-Mau, District-Chitrakoot. In the aforesaid F. I.R., an unknown person has been arraigned as an accused.
6. The gravamen of the allegations made in the F.I.R. is to the effect that on 05.03.2022 ar around 6.30PM, the cousin sister of first informant namely Kanchan had gone out to attend the call of nature in a field. However, she did not return home upto 8.00 P.M. Thereafter, a hectic search was made to locate her whereabouts. Ultimately, on the next day on 06.03.2022, at around 7.00 PM her body with blood soaked clothes was found in a drain, concealed in the bushes.
7. After recovery of death body of deceased the Inquest (Panchayatnama) of the body of deceased was conducted on the same day i.e. 06.03.2022. In the opinion of panch witnesses, the nature of death of deceased was characterised as homicidal as the cause of death of deceased was said to be strangulation. Subsequent to above, post-mortem of the body of deceased was conducted. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on the body of deceased:-
"i. Bruise 6 x 7 cm in front of Nech, just 5 cm below chin.
ii. Ligature mark 28 cm Horizontal in direction continuous in nature, Base of Ligature mark is brownish subcutaneous tissue under the ligature is ecchymosed, Ligature mark present 5 cm below the Rt. ear and 5 cm below the left ear and 5 cm. below the chin.
3. Multiple bruises present over face of multiple sizes and blowish in colour.
8. In the opinion of Autopsy Surgeon, the cause of death of deceased was Asphyxia as a result of ante-mortem strangulation.
9. Certain samples were taken from the body of the prosecutrix for pathological examination. However, the F.S.L. report of the prosecutrix has not been brought on record.
10. Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, he recorded the statements of large number of witnesses. However, the incriminating circumstance that has emerged against applicant is in the statement of Krishna Mohan, copy of which is on record at page 73 of paper book, statement of Chunki, which is on record at page 74 of the paper book and the statement of Kamal Bihari, copy of which is on record at page 75 of the paper book.
11. On the basis of above and other material collected by Investigating Officer during the course of investigation, which in the opinion of Investigating Officer is prima-facie adverse to applicant, he came to the conclusion that complicity of applicant is established in the crime in question. He, therefore, opined to submit a charge sheet. Accordingly he submitted the charge sheet dated 08.05.2022 whereby applicant has been charge sheeted under Sections 376 302, 201 I.P.C.
12. Learned counsel for applicant contends that applicant is not named in the F.I.R. He is innocent. Present case is a case of circumstantial evidence and therefore complicity of the applicant, if any, in the crime in question has to be considered in the light of parameters laid down by Apex Court for deciding a case based on circumstantial. Referring to paragraph 152 of the judgement of Apex Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622 he submits that only incriminating material that has emerged against applicant during the course of investigation is firstly the confessional statement of applicant. Placing reliance upon Section 25 of the Evidence Act, he submits that such material cannot be utilised against applicant in the present case. It is then contended that the statements of Krishna Mohan and Chunki do not point out the complicity of applicant in the crime in question. Same are merely suggestive in nature rather than a piece of direct evidence implicating the applicant. No motive has been attached to the applicant in committing the crime in question upto this stage. In view of above, applicant is liable to be enlarged on bail. Learned counsel for applicant further submits that applicant has criminal history of only one case which has been sufficiently explained. Applicant is in custody since 20.03.2022. As such, he has undergone more than eight months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, he submits that applicant is liable to be enlarged on bail
13. Per contra, the learned A.G.A. for State has opposed the present bail application. He contends that since the applicant is a charge-sheeted accused, therefore, he could not deserve any indulgence by this Court. On the aforesaid premise, learned A.G.A. submits that present bail application filed by applicant is liable to be rejected.
14. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that applicant is not named in the F.I.R., present case is case of circumstantial evidence, there is no recovery on the pointing out of applicant, there is no direct evidence of last seen against applicant, the incriminating circumstances that have emerged against applicant during course of investigation do not by themselves point at the guilt of the accused conclusively and no other hypothesis but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
15. Accordingly, present application for bail is allowed.
16. Let the applicant-Kamal Bihari Tripathi @ Bablu Vidhayak involved in aforesaid case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
17. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison Order Date :- 22.11.2022 YK