Allahabad High Court
Sanjeev @ Sanju vs State Of U.P. on 31 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:154430 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28903 of 2023 Applicant :- Sanjeev @ Sanju Opposite Party :- State of U.P. Counsel for Applicant :- Sudhakar Yadav Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28909 of 2023 Applicant :- Pawan Opposite Party :- State of U.P. Counsel for Applicant :- Sudhakar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sudhakar Yadav, the learned counsel for applicants and the learned A.G.A. for State.
2. Perused the record.
3. These applications for bail has been filed by applicants Sanjeev @ Sanju and Pawan seeking their enlargement on bail in Case Crime No. 12 of 2023, under Sections 302, 201 IPC, Police Station-Kalan, District-Shahjahanpur during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 14.01.2023, a prompt FIR dated 14.01.2023 was lodged by first informant-Saleem Shah (father of the deceased) and was registered as Case Crime No. 0012 of 2023, under Section 302 IPC, Police Station-Kalan, District-Shahjahanpur. In the aforesaid FIR, 3 persons namely - (1) Sanjeev, (2) Pawan and (3) Vineet have been nominated as named accused.
5. The gravamen of the allegations made in the FIR to the effect that Mukeen S/o first informant aged about 35 years had left his home at around 09:00 A.M. on 13.01.2023 informing the family members that he is going out to purchase wood. However, the son of the first informant did not return home even till late in the evening. Subsequently, the first informant is alleged to have received information that a body of an unknown person is lying in the area of police circle Kalan. Thereafter, the first informant along with his associates went to the place where the dead body was said to be found and upon having a glance at the same, he recognized that the dead body is of no other person but the son of first informant.
6. After above-mentioned FIR was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The inquest (Panchayatnama) of the body of the deceased was conducted on 14.01.2023. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as homicidal. Thereafter the post mortem of the body of the deceased was conducted on the next day i.e. 15.01.2023. The Doctor, who conducted the Autopsy of the body of the deceased found following anti-mortem injuries on the body of the deceased;-
"1. A contusion 4 x 3 cm (P) on Rt. side temporal region, just lateral Rt. angle of eye.
2. Contused eye (P) on Lt. side in area of 3 x 2 cm.
3. A abrasion size 3 x 0.8 cm (P) Rt. side of face, 5 cm below Rt. eye.
4. A multiple abrasion (p) on Lt leg toes.
5. A abraded contusion 9 x 6 cm on Lt. side of back, 5 cm below Rt. angle of scapular.
6. A ligature mark 2.7 x 1.5 cm around the neck obliquely upward B/W chin & larynx, 6cm below Rt. ear and 5 cm below mid of chin ... with the gap of 5 cm Lt. side of neck, the grouse is dry and parchment like on section, the subcutaneous tissue under the ligature mark white and glistening."
7. In the opinion of Autopsy Surgeon, the cause of death of the deceased was due to Asphyxia as a result of ante-mortem hanging. During course of investigation, Investigating Officer examined first informant and the following witnesses undder Section 161 Cr.P.C.;-
(i). Saleem Shah ,
(ii). Shanu Shah,
(iii). Smt. Shahan Bano,
(iv). Sri Munna Shah,
(v). Smt. Rekha Gupta,
(vi). Smt. Manjha Rani,
(vii). Sri Harish Chandra
8. 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 only 2 of the named accused Sanjeev and Pawan is established in the crime in question. He, accordingly, submitted the charge sheet dated 20.03.2023 whereby 2 of the named accused have been charge sheeted whereas the other named accused has been exculpated.
9. Learned counsel for applicants submits that though applicants are named as well as charge sheeted accused yet they are liable to be enlarged on bail. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence. The complicity of the an accused in a case based upon circumstantial evidence has to be judged in the light of the parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622 (Page 152). However, in the present case, none of the parameters laid down in aforementioned judgment are satisfied against applicants up to this stage. No strong motive has emerged against applicants for committing the crime in question. There is no evidence of last seen either. The evidence that has emerged against applicants is that the recovery of the mobile phone of the deceased was made on the joint pointing of applicants. According to the learned counsel for applicants, there could be no joint recovery. Apart from above, the other evidence that has emerged against applicants is that the deceased was trying to develop relationship with the sister of the applicants.
10. Even otherwise, applicants are men of clean antecedents having no criminal history to their credit except the present one. Applicants are in jail since 17.01.2023. As such, they have undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stand crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial.To buttress his submission, he has relied upon the judgment of Supreme Court inSumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). On the above premise, he, therefore, contends that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicants are named as well as charge sheeted accused, therefore, they do not deserve any indulgence by this Court. With reference to the material brought on record, the learned A.G.A. contends that the mobile phone of the deceased was recovered on the joint pointing of applicants and the motive behind the occurrence also stands established against applicants. The deceased was a young man aged about 25 years, who has died an unnatural death. He, therefore, submits that applicants do not deserve any sympathy by this Court.
12. In rejoinder, the learned counsel for applicants has reiterated his earlier submission. He has, however, submitted with reference to the recital occurring at page 34 of the paper book that as per the medical opinion, the death of the deceased is due to Asphyxia as a result of anti-mortem hanging. The nature of the death of the deceased is clearly suicidal. None of the ingredient of Section 107 IPC i.e. abetment, instigation or conspiracy are satisfied against applicants nor there is any such material on the record, on the basis of which, it can be concluded that the deceased committed suicide on account of an immediate act of applicants. On the above premise, he again submits that applicants are liable to be enlarged on bail.
13. Having heard, the learned counsel for applicants, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicants coupled with the fact that as per the post mortem report of the deceased, the nature of the death of the deceased is a suicidal death, the learned A.G.A. could not establish from the record that any of the ingredients of Section 107 IPC i.e. abtement, instigation or conspiracy is established against the applicants in the crime in question nor could he point out from the case diary that the deceased committed suicide on account of an immediate act of applicants, the recovery of mobile phone of the deceased on the joint pointing of applicants by itself is not so sufficient and incriminating circumstance so as to infer the guilt of the applicants, the clean antecedents of the applicants, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted, as such, the entire evidence sought to be relied upon by the prosecution against applicants stand crystallized, however, in spite of above, the learned A.G.A. could not point out from the record necessitating the custodial arrest of applicants during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal (Supra) but without making any comments on the merits of the case, applicants have made out a case for bail.
14. Accordingly, the bail applications are allowed.
15. Let the applicants-Sanjeev @ Sanju and Pawan, be released on bail in the aforesaid case crime number on their 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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.
16. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 31.7.2023 Vinay