Allahabad High Court
Raja Dwivedi @ Shivnaresh Dwivedi vs State Of U.P. on 12 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on:-16.12.2022 Delivered on:-12.04.2023 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31890 of 2022 Applicant :- Raja Dwivedi @ Shivnaresh Dwivedi Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Arvind Kumar Dubey,Aushim Luthra,Sr. Advocate Counsel for Opposite Party :- G.A.,Ashok Gupta Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33865 of 2022 Applicant :- Shiv Kumar Patel Opposite Party :- State of U.P. Counsel for Applicant :- Shri Chandra Counsel for Opposite Party :- G.A.,Akash Kishan,Ashok Gupta with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37798 of 2022 Applicant :- Saurabh Gupta @ Hanuwa Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Jai Shanker Audichya,Ashish Dwivedi,Jayati Dave Counsel for Opposite Party :- G.A.,Akash Kishan,Ashok Gupta with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33855 of 2022 Applicant :- Rajendra Dwivedi Opposite Party :- State of U.P. Counsel for Applicant :- Aushim Luthra,Arvind Kumar Dubey,Atharva Dixit,Sr. Advocate Counsel for Opposite Party :- G.A.,Akash Kishan,Ashok Gupta Hon'ble Rajeev Misra,J.
1. Heard Mr. Manish Tiwari, the learned Senior Counsel assisted by Mr. Atharva Dixit and Mr. Aushim Luthra, the learned counsel for applicants, the learned A.G.A. for State and Mr. Akash Kishan, the learned counsel for first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants, Raja Dwivedi @ Shivnaresh Dwivedi, Shiv Kumar Patel, Saurabh Gupta @ Hanuwa Gupta and Rajendra Dwivedi seeking their enlargement on bail in Case Crime No. 95 of 2022, under Sections 147, 302, 201/34 IPC, Police Station- Atarra, District Banda during the pendency of trial.
4. Record shows that an incident occurred on 10.4.2022 on the Railway Track, near canal i.e. Atarra Khurkhand Section at Km. 1349/16, in which a human being was run over by a moving train. The information of the said incident was reported by the Loco Pilot namely, Kuldeep Chaudhary of Train No. 15205 DN Lucknow Jabalpur, Chitrakoot Express to the Station Master of Atarra Raiway Station, District Banda.
5. Subsequently, Kamlesh Kumar, Point Man, Railway Station-Atarra, District- Banda gave information regarding aforesaid incident at the Police Station Atarra, District- Banda.
6. On the aforesaid information, the Police of Police Station- Atarra, District-Banda arrived at the place of incident/accident and recovered the dead body. Thereafter, the proceedings of inquest (panchayatnama) of the deceased commenced. The Station House Officer, of Police Station- Atarra, District Banda appointed the witness of inquest (Panch Witnesses) namely, Gaurav Kumar, Raj Kumar, Shekhar Lal, Anoop Kumar Gupta and Jugal Kishore. In the opinion of witness of inquest (Panch Witnesses), the death of deceased was characterized as suicidal. After the proceedings of inquest (Panchayatnama) were over, the Station House Officer of Police Station Atarra, District Banda prepared the detailed Police Scroll including the (recovery memo/seizure memo) of the articles recovered from the body of deceased. Thereafter, the body of the deceased was dispatched for post mortem. The Post Mortem of the body of deceased was conducted on the same day i.e. on 11.4.2022. The Autopsy surgeon found following anti-mortem injuries on the body of deceased:-
(i). Crush injury at neck.
(ii). Multiple abrasion and Contusion about (13x9) cm at Left face.
(iii). Lacerated wound about (3x1.5) cm at flexor aspect of wrist.
(iv). Left Mandible.
7. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante-mortem injury. However the Autopsy Surgeon could not conclude as to whether the death of deceased is homicidal or suicidal.
8. Looking into the nature of incident, the aid of forensic experts was also obtained. Accordingly, the forensic team visited the places of occurrence and upon evaluation of the same i.e. (premises of the Model Wine Shop), the railway track and the material collected by them including the blood stains found on the trolley of the tractor, they came to the conclusion that the death of deceased is not suicidal but homicidal. The same is explicit from the Forensic Science Laboratory Report (F.S.L) dated 15.4.2022.
9. After expiry of a period of four days from the date of aforementioned incident, a belated F.I.R. dated 14.4.2022 was lodged by first informant Jagdish Prasad Gupta (father of deceased), which was registered as Case Crime No. 95 of 2022, under Sections 147, 302, 201/34 IPC, Police Station- Atarra, District Banda. In the aforesaid F.I.R. four persons namely, Raja Dewivedi, Rajendra Dwivedi, Saurabh @ Hanua Gupta and Baura Yadav were nominated as named accused.
10. Subsequent to the registration of above mentioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer, examined the following witnesses:
(1) Kamlesh Kumar (Point Man, Railway Station- Attarra, Banda) (2) Kuldeep Chaudhary (Driver of Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express) (3) Constable Pawan Kumar Pal (4) Constable Ranjit Singh (5) Jugal Kishore (father of deceased) (first informant) (6) Himmat Singh (7) Lalit Kumar Gupta (8) Munna Gupta (mama) (9)Subham Sahu (10) Rinkoo Gupta (11) Genda Singh (Owner of Coutnry Liquor shop adjacent to Model shop) (12) Pranjul Soni (Mechanic of CCTV) (13) Golu @ Ankit Verma (Eye witness) (14) Umakant Upadhyay (sales man-eye witness of assault on deceased) (15) Pramod Upadhyay (16) Atul Dixit (17) Ravi Jaiswal (18) Suraj Gupta (19) Ramdas Yadav (20) Saurabh Singh (21) Shiv Pujan Chaurasia
11. Since much reliance was placed upon the statements of some of the witnesses by the learned A.G.A. in support of his submission that present case is a case of direct evidence and not circumstantial evidence, therefore, the genesis of the statements of aforementioned witnesses are mentioned hereinunder:-
11.1. Kamlesh Kumar, Point Man, Railway Station Attarra, Banda. This witness is a railway employee. At the relevant point of time, he was working as Point Man, Railway Station Attarra, Banda. After the incident had occurred i.e. when Train No. 15205 DN Lucknow-Jabalpur-Chitrakoot Express ran over a human being who was lying on the railway track (Attarra Khurhan Section at km 1349/16) near the canal, this witness informed the police at police station-Attarra, District-Banda, about the occurrence. He further disclosed that the information regarding the accident has also been given by the Loco Pilot of aforesaid train to the Station Master of Railway Station-Attarra, Banda. On the information of this witness, the inquest (Panchayatnama) of the deceased was conducted.
11.2. Kuldeep Chaudhary (Driver of Train No. 15205 Down Lucknow-Jabalpur-Chitrakoot Express). This witness is a railway employee and is working as a Loco Pilot. On the fateful day, this witness was driving aforementioned train. After the incident occurred, this witness informed the Station Master, Railway Station Attarra, Banda on the Walki-Talkie of the Guard of aforementioned train, about this incident.
11.3. Constable Pawan Kumar Pal and Constable Ranjeet Singh. These witnesses are working as Police Constable in UP Police. After the incident was reported at police station Attarra, Banda, Constable Pawan Kumar Pal along with Constable Ranjeet Singh reached the place of occurrence. These witnesses in their statements under Section 161 Cr.P.C. have clearly stated that when they proceeded for the place of incident, Saurabh Gupta @ Hanua accompanied them. However, when they reached the place of incident, Hanua seeing the shattered body exclaimed that has he died. On query being raised by the police personnel with Saurabh Gupta @ Hanua regarding identity of deceased, he clearly denied. They have further stated that thereafter, two other persons namely Raja Dwivedi and Baura Yadav came on the spot. All the three were talking to each other but they did not identify the deceased. Subsequently, Lalit (Mama of deceased) and Jugal Kishore (father of deceased) also reached the spot on the information given by Himmat Singh. At this juncture, Saurabh Gupta @ Hanua had hot talk with Lalit regarding the earlier incident in which Raja Dwivedi, Baura Yadav and others had assaulted the deceased.
11.4. Jugal Kishore (first informant/father of deceased). This witness is the first informant as well as father of the deceased (Atul Gupta). This witness in his statement before the Investigating Officer has stated that on 10.04.2022, Ram Navami was being celebrated. He was present at home. One Umakant Upadhyay, Sales Man at Model Wine Shop owned by Raja Dwivedi gave a call from his Mobile Number 7905961553 to this witness, Jagdish and Lalit Gupta. He disclosed about the incident in which Atul Gupta, son of this witness, was being assaulted by four persons namely Raja Dwivedi @ Shiv Naresh, Baura Yadav and Rajendra Dwivedi along with Ravi Jaiswal who operates the canteen at the Model Wine Shop on the charge of his having stolen Rs. 30,000/-. On this information, this witness along with Jagdish reached the place of occurrence and saw that his son was being badly assaulted by Raja Dwivedi @ Shiv Naresh, Baura Yadav, Rajendra Dwivedi and Ravi Jaiswal with Danda, Chaila (flat piece of wood) and Patra (also a flat piece of wood). Upon request made by this witness not to beat his son, Rajendra Dwivedi stated only when Rs. 30,000/- are given, he shall allow Atul Gupta to leave the premises. At this stage, Lalit Gupta, nephew of this witness requested Raja Dwivedi to leave Atul Gupta and the money shall be returned. But the associates of Raja Dwivedi were adamant. On enquiry Atul clearly stated that he has not stolen any money. A false charge has been levelled against him. They thereafter requested Atul Gupta to return home but he refused probably on account of treat. This witness has further stated that he reached the Model Wine Shop at 5:00 PM and left the same at 6:15 PM. They assured Raja Dwivedi that after being satisfied he may leave his son. At around 11:39 PM, information was received by Harishit @ Golu (brother of Atul Gupta-deceased) that the dead body of his brother is lying on the railway track. Thereafter, Golu disclosed this information to his father and then they reached the place of occurrence. He has further stated about the visuals seen by him on the CCTV footage.
11.4. Himmat Singh. This witness in his statement before the Investigating Officer has stated that information regarding the death of deceased i.e. Sugam Gupta @ Atul Gupta was received by him on his mobile phone as well as by whatsapp message. It is, thereafter, that this witness disclosed the aforesaid information to his friend Harshit Gupta (brother of deceased Atul Gupta). Upon receipt of this information, the family members of deceased reached the place of occurrence.
11.5. Lalit Kumar Gupta (Mama of deceased). This witness is the maternal uncle (Mama) of the deceased. The statement of this witness is substantially identical to that of Jugal Kishore (father of deceased). He has further stated that after the deceased Atul Gupta was returning from the home of his another maternal uncle namely Munna Gupta he was again caught by Raja Dwivedi @ Shiv Naresh, Baura Yadav, Rajendra Dwivedi and Ravi Jaiswal. Thereafter, again demand of money was raised and Atul was assaulted. Atul was under the spell of intoxication. He fell down and died. Thereafter, Raja Dwivedi called his tractor bearing Registration No. UP 90H 8923 which is of gray colour and on the false pretext that bricks of Genda Singh has to be loaded carried the dead body of Atul to the railway track and thereafter laid the same on the railway track. The entire occurrence regarding assault is evident from the CCTV footage. This witness has also stated that the carrying of the dead body on the tractor was witnessed by many persons. The entire occurrence can be verified from Golu @ Ankit Verma and Genda Singh. He has, thereafter, detailed the conduct of the accused persons.
11.6. Munna Gupta (maternal uncle-Mama). This witness is the second maternal uncle (Mama) of the deceased. This witness in his statement has stated that Atul came to his house at around 09:30 PM and demanded 50-100 Rs. However, as Atul was under the spell of intoxication, this witness refused to give money. Accordingly, Atul left on his E-rickshaw.
11.7. Genda Singh (owner of country liquor shop adjacent to Model Wine Shop). This witness is the owner of country liquor shop which is situate adjacent to the model wine shop of accused Raja Dwivedi. This witness has stated that he had purchased bricks for raising a wall. On 10.04.2022 at around 10:00 to 10:30 PM Raja Dwivedi, Baura Yadav and Hanua Gupta were committing theft of the said bricks. After one trolley of bricks had been carried away, this witness received information regarding above and reached the spot. He saw that Raja Dwivedi wearing a yellow Kurta was standing. Baura was driving the tractor and Hanua was sitting on the same. On the direction of the station house officer two police Constables reached the spot and restrained the aforesaid persons from carrying the bricks. At this juncture, Hanua exclaimed that "yaha kaam nahi ho pa rha hai. tab tak chaliye dusra kaam nipta lete hai." This witness further stated that after a short while he received information that the dead body of a human being which has been run over by a train is lying on the railway track. Thereafter, Hanua accompanied the police personnel, Baura took the tractor and Raja Dwivedi went on his bike.
11.8. Shubham Gupta. The statement of this witness is identical to that of Genda Singh.
11.9. Rinkoo Gupta. The deposition of this witnesss is also similar to that of Genda Singh.
11.10. Pranjul. This witness is an independent witness. By profession, this witness is a CCTV mechanic. He has stated that on 10.04.2022 at around 3:30 PM, he was called by Ravi Jaiswal @ Chacchu, who runs the canteen at the Model Wine Shop owned by Raja Dwivedi, to examine the CCTV footage as a theft has taken place. On this request, he went at the Model Wine Shop of Raja Dwivedi and saw that Atul had taken out some money from the purse of Raja Dwivedi and put it in his pocket. After some time, Raja Dwivedi, Baura, Shiv Kumar Patel and Rajendra started beating Atul. This witness has further stated that he requested aforesaid persons not to beat Atul but no heed was paid. After some time, Nana and father of Atul reached the spot and thereafter, he left the Model Wine Shop. At around 12:30 PM, Raja Dwivedi again called this witness but the mobile call was not answered, as this witness was asleep.
11.11. Shiv Pujan Chaurasia. This witness is a CCTV mechanic. He is also an independent witness. After the occurrence had occurred, this witness was called by Sonu, Sales Man on 11.04.2022 at around 01:30 AM disclosing that since theft has taken place in the Model Wine Shop therefore, he should immediately come to the Model Wine Shop. He immediately reached the Model Wine Shop. Raja Dwivedi who had concealed his face came from the back door and took this witness inside. At this juncture, there were Raja Dwivedi, Baura, Hanua and two other unknown persons. Raja Dwivedi requested this witness to delete the CCTV footage as the entire episode of assault has been recorded therein. This witness clearly denied the request of Raja Dwivedi. Thereafter, Raja Dwivedi extended threat and misbehaved with this witness but he did not interfere with the CCTV system.
11.12. Golu @ Ankit Verma. This witness is an independent eye witness. He is the driver of the pickup truck and transports liquor from Government godown to liquor shops. He has further stated that he used to transport liquor for the Model Wine Shop of Raja Dwivedi. On 10.04.2022, he reached the Model Wine Shop of Raja Dwivedi at around 4:00 PM and saw Raja Dwivedi, Baura, Rajendra Dwivedi and Shiv Kumar Patel were assaulting Atul Gupta by Danda and were spreading salt and raita on his back. This witness after delivering the liquor left the place. He discussed about the incident with one or two persons. At around 10:00 to 10:30 PM, when this witness was returning after delivering the goods and as he reached the teachers colony crossing in front of SBI, he saw Baura Yadav who was carrying one person on his back and thereafter dropped him on the tractor trolley. Two persons namely Raja Dwivedi and Hanua Gupta were standing nearby. Two other persons who were also standing could not be properly seen by him. The tractor after passing through Lai Mandi went in the direction of the railway crossing. On the next day, when he heard about the recovery of the dead body of Atul Gupta, he recollected the entire incident and inferred that his death was caused by aforementioned persons.
11.13. Umakant Upadhyay was working as Sales Man at Model Wine Shop of Raja Dwivedi. He is an eye witness of the occurrence which occurred on 10.04.2022 at around 4:00 PM at the Model Wine Shop. This witness has clearly stated as to how Atul Gupta was badly assaulted by all the four accused and how in human act of putting raita and salt in the back of Atul was committed by Ravi Jaiswal and Shiv Kumar. He has also deposed that these two persons were pushing the same in the back of Atul by a Danda. He has then described as to how father of Atul came at the wine shop. This witness has also stated that Atul was physically examined but no money was recovered from him which shows that no theft was committed by Atul from the purse of Raja Dwivedi.
11.14. Pramod Upadhyay. This witness is an independent witness and acquainted with Rajendra Dwivedi and his Manager Shiv Kumar Patel. On the phone call of Rajendra Dwivedi informing him that Atul Gupta has stolen his money. At this juncture, Shiv Kumar requested him to drop him at the Model Wine Shop. After reaching the Model Wine Shop, he dropped Shiv Kumar and also went inside the Model Wine Shop. Upon entrance, he saw that one Atul was being badly assaulted by Raja Dwivedi, Baura and Rajendra. He has then described the occurrence which took place at the Model Wine Shop and was initiated by him.
11.15. Atul Dixit, Ravi Jaiswal, Suraj Gupta, Ramdas Yadav and Saurabh Singh. They all are independent eye witness of the occurrence which occurred on 10.04.2022 at 4:30 PM at Model Wine Shop owned by accused Raja Dwivedi.
12. Apart from recording the statements of various witnesses, Investigating Officer visited the place of occurrence i.e. Model Wine Shop, owned by named accused Raja Dwivedi and also the Railway Track where the body of deceased was run over by the moving train. He, accordingly, prepared the maps regarding the places of occurrence.
13. After the arrest of the named accused namely, Raja Dwivedi and Shiv Kumar on 24.4.2022. Investigating Officer on the pointing of named accused Raja Dwivedi recovered the weapons of assault i.e. phanti and chaila (pieces of wood) and (danda) on the pointing of named accused Shiv Kumar. Investigating Officer also recovered the CCTV footage of the CCTV installed in the Model Wine Shop, and a tractor i.e. Tractor No. UP 90 H 8932 of Eicher 380 make in Gray colour along with the trolley from the house of named accused Raja Dwivedi. He also found blood stains on the trolley of the tractor. He, accordingly, prepared a memo of the same.
14. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 8.5.2022, whereby named accused Raja Dwivedi, Rajendra Dwivedi, Saurabh @ Hanua Gupta and Baura have been charge sheeted under sections 302/201/147/34 IPC.
15. All the applicants who were taken into custody on 24.4.2022 applied for bail before Court below, vide separate bail applications which were rejected vide seperate bail rejection orders dated 28.6.2022, 28.6.2022, 13.6.2022 and 29.6.2022. Thus feeling aggrieved by above, applicants, who are named and charge sheeted accused, have now approached this Court by means of aforementioned bail applications, seeking their enlargement on bail during the pendency of trial.
16. Mr. Manish Tiwary, the learned Senior Counsel for applicants submits that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in aforementioned case crime number.
17. It is next contended that present case is a case of circumstantial evidence. As such, there is no eye witness of the occurrence. He has then referred to the judgement of Supreme Court in Sharad Birdhichand Sarda, Vs. State of Maharashtra, AIR 1984 Supreme Court 1622 and on basis of above, he submits that complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of the parameters laid down in paragraph 152 of the aforementioned judgement for upholding the guilt of an accused in a case based upon circumstantial evidence. According to the learned Senior Counsel for applicants, none of the parameters, as laid down in aforementioned judgement, are satisfied against applicants upto this stage.
18. According to the learned Senior Counsel, the occurrence is alleged to have occurred on 10.4.2022. However, the F.I.R. in respect of same was lodged on 14.4.2022 i.e. after four days. As such, there is delay in lodging the F.I.R. But, neither in the F.I.R. nor in the statement of first informant Jagdish Prasad Gupta any explanation regarding delay in lodging the F.I.R. has been offered. As such, the delay in lodging the F.I.R. remains unexplained. Placing reliance upon paragraph 8 of the judgement of Supreme Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866, learned Senior Counsel contends that since delay in lodging the F.I.R. has not been explained, the prosecution of applicant itself cannot be sustained.
19. Referring to the material on record, he contends that the death of deceased is an accidental death and not on account of any deliberate act of applicants. To buttress his submission, he has invited the attention of Court to the case diary and on basis thereof he submits that information regarding the incident was first reported by Kuldeep Chaudhary Loco Pilot of Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express to the Station Master of Atarra Railway Station, District Banda. He has then referred to the inquest report (panchayatnama) of the deceased and on basis thereof he contends that information regarding the incident was reported by Kamlesh Kumar, Point Man, Railway Station Atarra, District Banda. It was on aforesaid information that the inquest (panchayatnama) of the deceased was conducted. As per the opinion of witnesses of inquest (panch witnesses) the death of deceased was said to be accidental.
20. It is further submitted by the learned Senior Counsel that the deceased was heavily drunk and therefore, he himself was not under his control. His unguided movements as explicit from the record are like a rudderless ship. As such, it was the deceased himself who committed suicide by laying on the railway track and was thereafter run over by a moving train.
21. Learned Senior Counsel for applicants has then referred to the averments made in paragraph 12 of the affidavit filed in support of the bail application of applicant Rajendra Dwivedi to contend that the occurrence took place in between 8:30 hrs. to 20:36 hrs. and therefore, the prosecution story to the contrary that the deceased was murdered by named accused and thereafter his dead body was laid at the Railway Track, is totally belied by the medical evidence on record.
22. It is lastly contend that even otherwise applicants Shiv Kumar Patel and Rajendra Dwivedi are of clean antecedents, inasmuch as they have no criminal history to their credit except the present one. Applicant Raja Dwivedi @ Shivnaresh Dwivedi has criminal history of one case which has been duly explained in paragraph 74 of the affidavit filed in support of the bail application. Applicant Saurabh Gupta has also criminal history to his credit. However, the same has been duly explained in paragraph 40 of the affidavit filed in support of the bail application. Applicants are in jail since 24.4.2022, respectively. As such, they have undergone more than ten months of incarceration. The charge sheet having been submitted, the evidence sought to be relied upon by the prosecution against applicants stands crystallized. As such, custodial arrest of applicants is not absolutely necessary during the course of trial.
23. On the above premise, the learned senior counsel for applicants vehemently contends that applicants are liable to be enlarged on bail. In case applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
24. Per contra, the learned A.G.A. has opposed the present applications for bail. According to the learned A.G.A., allegations made in the F.I.R. when examined in the light of material on record i.e. statements of witnesses examined under section 161 Cr.P.C. , the recoveries of weapon of assault, CCTV footage, blood stains on the trolley of tractor, the F.S.L report and other material prepared and recovered by Investigating Officer during the course of investigation, it cannot be said that the allegations made in the F.I.R. are false and concocted. The prosecution of applicants, therefore, cannot be said to be false nor it can be said that there is no material to support the prosecution of applicants.
25. According to learned A.G.A. present case is a case of direct evidence and not circumstantial evidence, as submitted by learned Senior counsel for applicants. In the submission of learned A.G.A., the occurrence giving rise to present criminal proceedings is in two parts;
(i) The first part of occurrence relates to the incident regarding assault on the deceased at the Model Wine shop and thereafter his dead body being carried on Tractor No. UP 90 H 8932 Eischer 380 make and in Gray colour and laid on the Railway Track.
(ii) The second part of the incident relates to the incident caused by the moving train i.e. Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express near canal i.e. Attara Khurkhand Section at Km. 1349/16, where the body of deceased was run over by the aforesaid moving train.
26. Both the incidents, as noted above, have occurred one after the other and are thus part of the same transaction. Therefore by reason of the principle of Resgata enshrined in Section 6 of the Evidence Act, they have to be conjointly evaluated. One cannot be examined in isolation of other. The first part of the incident which occurred at the Model Wine Shop stands corroborated by the statements of some of the witnesses examined under section 161 Cr.P.C. as well as the some of the recoveries made by Investigating Officer during course of investigation. In view of above, the parameters laid down by Apex Court in Sharad Birdhichand Sarda (Supra) for deciding the guilt of an accused in a case based upon circumstantial evidence are not applicable to the present case. The present case is therefore, a case of direct evidence and the complicity, if any, of the accused-applicants, in the crime in question, has to be judged in the light of the material on record which has been referred above.
27. With regard to the delay in lodging the F.I.R., the learned A.G.A. contends that there is no deliberate negligence or laches on the part of first informant in lodging the F.I.R. The incident is alleged to have occurred on 10.4.2022. Thereafter, the inquest (panchayatnama) of the body of deceased was conducted on 11.4.2022, followed by the post mortem of the body of the deceased on the same day. The dead body of the deceased was, thereafter, handed over to the first informant and was cremated. The deceased was a young boy aged about 31 years and the younger son of first informant. In such circumstances, it cannot be said that first informant, who was suffering from the trauma of having lost his young son, was deliberately negligent in lodging the F.I.R. The entire circumstances pertaining prior to the occurrence, and subsequent to the occurrence have been duly elaborated in the statement of first informant recorded under section 161 Cr.P.C. There is no material on record at this stage to doubt the same. In view of above, it cannot be conclusively held that there is any deliberate negligence or laches on the part of first informant in lodging the F.I.R.
28. With reference to the material on record, the learned A.G.A. contends that statements of witnesses examined by Investigating Officer, under section 161 Cr.P.C., the recoveries made by Investigating Officer, the adverse circumstances that have emerged against applicants clearly show that the deceased was first assaulted by named accused and put to death. at the place of occurrence i.e. the premises of Model Wine Shop owned by accused applicant Raja Dwivedi. Subsequent to above, his dead body was carried by a tractor i.e. UP 90 H 8932 of Eicher 380 make and in Gray colour and thereafter laid on the Railway Track. It is, thereafter, that the body of deceased was run over by a moving train. As such, the entire occurrence is the outcome of deliberate acts of applicants and well planned execution which clearly goes to prove the mens-rea of the applicants in committing the crime in question. As such, no indulgence be granted by this Court in favour of applicants.
29. Learned A.G.A. then submits that complicity of applicants in the crime in question stands clearly established by the CCTV footage of Model Wine Shop, wherefrom it is explicit that all the named accused assaulted the deceased repeatedly and brutally. The recovery of weapons of assault i.e. Phanti, Chaila and Danda from two of the named accused namely, Raja Dwivedi and Shiv Kumar also corroborates the CCTV footage. Apart from above, the tractor that was used in carrying the dead body of deceased from the Model Wine Shop to the Railway Track i.e. Tractor No. UP 90 H 8932 of Eicher 380 make and in Gray Colour was recovered from the house of accused Raja Dwivedi along with the trolley. Blood stains were found on the trolley of Tractor. The same were duly noted by F.S.L. team which are explicit from the F.S.L. report dated 15.4.2022. No explanation regarding same has been offered by the applicants.
30. The complicity of applicants in the crime in question also stands corroborated by the statements of witnesses whose statements have been detailed above. Up to this stage, no such material has been pointed out on behalf of learned Senior Counsel for applicants with reference to the case diary on the basis of which the credibility and reliability of the recoveries as well as the statements of above mentioned witnesses could be held to be unworthy of trust and thus unreliable.
31. On the cumulative strength of above, the learned A.G.A. submits that applicants, who are guilty of causing the death of a young boy aged about 31 years, do not deserve any indulgence by this Court.
32. Having heard the learned Senior Counsel for applicants, the learned A.G.A. for State, Mr. Akash Kishan, the learned counsel for first informant, upon perusal of material brought on record as well as the complicity of applicants, accusations made, coupled with the fact that recoveries of weapon of assault have been made on the pointing of two of the named accused namely, Raja Dwivedi and Shiv Kumar, the complicity of applicants in the crime in question being established as per the CCTV footage, no explanation having come forward from the applicants with regard to the presence of blood stains on the trolley of tractor i.e. Tractor No. UP 90 H 8932, Eicher 380 make and in Gray Colour, the recovery of trolley along with tractor from the house of accused Raaja Dwivedi, the statements of some of the witnesses examined under section 161 Cr.P.C., particularly, Umakant Upadhyay and Pranjul Soni (CCTV Mechanic) who were requested to clear the CCTV footage, the statement of Golu @ Ankit Verma who saw Baura Yadav carrying one person on his back and thereafter dropped in the tractor trolley, the conduct of the accused in referring to identify the dead body of the deceased at the railway track in the presence of the two police constables namely Pawan Kumar Pal and Ranjit Singh, the FSL report which suggests that the death of deceased is homicidal and not suicidal, but without making any comment on the merits of the case, this court does not find any good ground to enlarge the applicants on bail.
33. As a result, the bail applications fail and are liable to be rejected.
34. They are accordingly rejected.
Order date:-12.04.2023 YK