Allahabad High Court
Bhola Nishad @ Harishchandra vs State Of U.P. on 10 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7311 of 2022 Applicant :- Bhola Nishad @ Harishchandra Opposite Party :- State of U.P. Counsel for Applicant :- Praveen Kumar Singh,Rupesh Kumar Singh Counsel for Opposite Party :- G.A.,Raj Kumar Sharma,Sanjay Kumar Sharma Hon'ble Rajeev Misra,J.
Heard Mr. Praveen Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Bhola Nishad @ Harishchandra seeking his enlargement on bail in Case Crime No. 13 of 2021, under Sections 302, 201, 34 IPC, P.S. Balua, District Chandauli, during the pendency of trial.
Record shows that one Arun Sharma, son of Bal Chandra Sharma went missing on 30.1.2021. Accordingly, a missing person report regarding the same was lodged by Bal Chandra Sharma (father) on 01.02.2021. Subsequently, an F.I.R. dated 1.2.2021 was lodged by first informant Bal Chandra Sharma (father of the deceased) and was registered as Case Crime No. 13 of 2021, under Sections 302, 201, 34 IPC, P.S. Balua, District Chandauli. In the aforesaid F.I.R., three persons namely Priyanka Sharma (daughter-in-law), Rohit Nishad have been nominated as named accused, whereas an unknown person has also been arraigned as an accused.
Gravamen of the allegations made in the F.I.R. is to the effect that named accused along with an unknown person have caused the murder of Arun Sharma, son of the first informant.
Subsequent to aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. Rohit Nishad and Priyanka Sharma the named accused were arrested on 2.2.2021. On the pointing out of named accused Rohit Nishad a knife was recovered by the Investigating Officer. Accordingly Recovery/seizure memo of the same was prepared on 2.2.2021.
Subsequent to above, a beheaded body was recovered on 6.2.2021, which was identified as the dead body of the deceased. Thereafter, the inquest of the body was conducted on 6.2.2021. In the opinion of panch witnesses, the nature of death of the deceased was characterized as homicidal Subsequent to above, the post mortem of the dead body of the deceased was conducted on 7.2.2021. Autopsy Surgeon opined as follows regarding status of the body:-
Examination of Body remains (1) through knee amputation (R) Muscle and skin present only on foot area all toes intact
(ii) through elbow amputation (R) muscle skin present only on hand and wrist area whole thumb and index finger through pip joints lost Wrist band present of red colour white metallic ring present in little finger
(iii) (L) lower limb distal half foot (mid metatarsal) is missing otherwise intact upto hip only skeleton some ligament intact. Muscle lost in leg and thigh and hip region.
Muscle skin is present only remaining part of foot and ankle
(iv) boney membranes of spine, posterior aspect of rib cage present. All part lost inlet of thoracic cavity bone intact body part above intact of thoracic cavity is bone missing. (i.e. head and neck is missing).
(v) pelvic bone, LS spine intact whole body remains stained with mud length of femur : 46 cm
(vi) No visceral part seen on body remains
(vii) Remains of R foot and R hand = shows no maggot blister decomposition changes is minimum In the opinion of Autopsy Surgeon, the cause of death could not be emanated. Autopsy Surgeon further opined that the death has occurred a week ago. Subsequent to above, the head of deceased was recovered on 8.2.2021.
On the basis of the confessional statement of Rohit Nishad, the complicity of present applicant also came to surface. Accordingly, applicant was arrested on 28.5.2021. During the course of investigation, Investigating Officer examined Savitri Devi, Meera Devi and Munni Devi under Section 161 Cr. P. C. These witnesses in their statements given before the Investigating Officer have stated that named accused along with an unknown person was seen carrying the dead body of the deceased. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. However, the investigation in respect of present applicant is said to be pending.
Learned counsel for applicant submits that the applicant is innocent. Applicant is not named in the F.I.R. It is then contended that present case is a case of circumstantial evidence and therefore complicity of applicant, if any, in the crime in question has to be examined in the light of parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC, 1622. Reliance is placed upon paragraph 152 of the aforesaid judgement, which reads as under:-
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.\ (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
On the aforesaid premise, the learned counsel for applicant submits that at this stage only two sets of evidence have emerged against applicant. One is the confessional statement of named accused Rohit Nishad and second is the statements of three witnesses named above.
Learned counsel for applicant submits that confessional statement of an accused is inadmissible in evidence by virtue of the provisions contained in Section 25 of Indian Evidence Act. As such, no reliance can be placed upon the same. With regard to the second incriminating material that has emerged against applicant, the credibility and reliability of the same has been doubted by the learned counsel for applicant on the ground that the same was recorded on 6.4.20921 i.e. after expiry of a period of more than 1 month and four days from the date of lodging of the F.I.R. It is also contended that the since the complicity of applicant has not been specifically mentioned in the statement of above mentioned witnesses examined under Section 161 Cr. P. C., therefore no inference regarding the guilt of applicant can be drawn on the basis of same. According to learned counsel for applicant, when the entire material collected upto this stage is examined in the light of parameters as noted herein above, they prima facie do not point at the guilt of applicant and no other hypothesis.
It is lastly submitted that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 28.5.202. As such applicant has undergone more than 1 year and 5 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. has opposed the present application for bail. He submits that prima facie complicity of applicant is established in the crime in question as per the confessional statement of the named accused Rohit Nihshad. There is no material on record to prove the innocence of the applicant. Applicant is guilty of committing an offence punishable under Section 302/34 IPC. As such, applicant does not deserve any indulgence by this Court.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, coupled with the fact that evidence which has been collected upto this stage does not prima facie establish the complicity of the applicant in the crime in question, but without expressing any opinion on the merits of the case, the applicant has made out a case for bail.
Accordingly, bail application is allowed.
Let the applicant Bhola Nishad @ Harishchandra involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant 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 I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant 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.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 10.11.2022 HSM