Allahabad High Court
Ankit Kumar Verma vs State Of U.P. on 27 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:188407 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36962 of 2023 Applicant :- Ankit Kumar Verma Opposite Party :- State of U.P. Counsel for Applicant :- Virendra Singh Parmar,Bhagyawati Verma Counsel for Opposite Party :- G.A.,Amit Singh Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28731 of 2023 Applicant :- Santosh Kumar Patel Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Pranav Tiwary Counsel for Opposite Party :- G.A.,Amit Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. V.S. Parmar, the learned counsel for applicant-Ankit Kumar Verma, Mr. Atharva Dixit along with Mr. Pranav Tiwari, the learned counsel for applicant-Santosh Kumar Patel, the learned A.G.A. for State and Mr. Amit Singh, the learned counsel representing first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants-Ankit Kumar Verma and Santosh Kumar Patel seeking their enlargement on bail in Case Crime No. 75 of 2023, under Sections 302, 394, 328, 392, 411, 120B IPC, Police Station-George Town, District-Allahabad during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 15.03.2023, a delayed FIR dated 18.03.2023 was lodged by first informant-Smt. Anita Pandey (mother of the deceased) and was registered as Case Crime No. 75 of 2023, under Sections 302, 394, 120B IPC, Police Station-George Town, District-Allahabad. In the aforesaid FIR, one Sandeep Kanaujiya @ Lara has been nominated as named accused whereas 2 to 3 unknown associates of named accused have also been arraigned as accused.
5. The gravamen of the allegations made in the FIR to the effect that Vipul Pandey (son of the first informant) along with his friend Sandeep Kanaujiya and 2 to 3 unknown associates of his friend Sandeep Kanaujiya went together on 15.03.2023 at around 05:00 PM. The FIR further records that when the deceased left home, he was in possession of Rs. 4,25,000/- cash. The deceased is alleged to have informed his mother that he is going along with his friend and his associates with some work. However, the son of the first informant did not return home even till 12:00 PM of the same date. Accordingly, a call was made on the mobile phone of the deceased, which was answered by him. The deceased is said to have inform his mother that he shall reach home by the morning. However, even on the next day i.e. 16.03.2023, the deceased did not return home and his mobile phone was reported to be switched off. In desperation, a call was made to Sandeep Kanaujiya but his mobile phone was also reported to be switched off. Accordingly, the first informant out of anxiety disclosed the said incident to her relatives but the whereabouts of the son of the first informant could not be located. At around 02:00 PM, one Dinesh Kumar resident of Allahpur is said to have reached the house of first informant and inform the first informant that her son is lying in Loha Park, Allahpur in a state of unconsciousness. On the receipt of the said information, the first informant along with other relatives reached the said place and found her son lying on the ground. Thereafter, they carried him to Saket Hospital where the Doctor declared that he has died 2 hours ago. The FIR ultimately concludes with the recital that at the time when the deceased left home, he was wearing a gold bracelet weighing about 46 grams, a gold chain which was weighing approximately 30 grams (2.5 Tola) and also carried a mobile phone. However, when the body of the son of the first informant was retrieved, the said articles were found missing from his person.
6. It is apposite to mention here that prior to the lodging of the FIR, the information regarding the occurrence had been received by the first informant from one Vipul Pandey. It is, thereafter, that the body of deceased was retrieved and taken to the Hospital where he was declared dead.
7. Subsequent to above, on 16.03.2023, the inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased could not be categorized as the cause of death could not be ascertained. Thereafter, the post mortem of the body of deceased was conducted on the next day i.e. 17.03.2023. The Doctor, who conducted autopsy of the body of deceased, did not find any external ante-mortem injury on the body of deceased. However, as the immediate cause of death of deceased could not be ascertained therefore, the viscera of the deceased was preserved.
8. It is only after the aforesaid proceedings had been undertaken that the FIR giving rise to present criminal proceedings came to be lodged.
9. After lodging of FIR as noted above, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He recorded the statements of the following witnesses under Section 161 Cr.P.C.:-
(i). Anita Pandey,
(ii). Avnish Pandey,
(iii). Arvind Pandey,
(iv). Rohit Shukla,
(v). Rajkumar Pandey,
(vi). Jagdish Kumar Pandey
10. The complicity of other accused surfaced in the statement of the witnesses so examined under Section 161 Cr.P.C. Named accused Sanjay Kanaujiya along with present applicant were arrested on 24.03.2023. The said arrest was made from Kundan Guest House, Allahpur, District-Allahabad.
11. From the person of named accused Sandeep Kanaujiya, the following recoveries were made - (i). A gold bracelet owned by the deceased, (ii). a VISA signature card of Fedaral Bank and (iii). one Titan watch.
12. From the person of applicant-Ankit Kumar Verma, the following recoveries were made - (i). Paytm VISA card, (ii). PAN Card and (iii). Driving License of the deceased.
13. From the person of Santosh Kumar Patel, the following recoveries were made - (i). Aadhar Card of the deceased and (ii). Two ATM card which did not belong to the deceased.
14. During the pendency of investigation, the Scientific Officer, F.S.L. Laboratory, Prayagraj submitted viscera report of deceased. As per the said report, Ethyl Alcohol and Organo Chloro Insecticide were found in the body parts of the deceased sent for chemical examination.
15. On the basis of above and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused Sandeep Kanaujiya as well as the present applicants is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 16.05.2023 whereby named accused Sandeep Kanaujiya and the present applicants have been charge sheeted under Sections 302, 394, 328, 392, 411, 120B IPC.
16. Learned counsel for applicants submit that though the applicants are not named but charge sheeted accused yet they are liable to be enlarged on bail.
17. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence giving rise to the present criminal proceedings. They, therefore, submit that the complicity of an accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Paragraph 152). However, none of the parameters laid down in aforementioned judgment are satisfied against applicants up to this stage. According to the learned counsel for applicants, neither any strong motive has emerged with the applicants to commit the crime in question nor any animus has emerged on account of which the applicants could have committed the crime in question. It is thus contended that applicants have been falsely implicated in the crime in question.
18. Doubting the recovery made by the Investigating Officer, the learned counsel for applicants submits that the said recoveries are alleged to have been made from the person of applicants after expiry of a period of 6 days from the date of FIR and also at the time when the applicants were arrested from a public place. They submit that the said recoveries are implanted. They are not evidenced by any independent witness. As such, the same cannot be relied upon for inferring the guilt of the accused in the crime in question.
19. According to the learned counsel for applicants, it is an admitted case of the first informant that the information regarding the whereabouts of the deceased was received by the first informant on 16.03.2023. The body of the victim (son of the first informant) was retrieved on the same day. However, the FIR was lodged with delay of 3 days (i.e. from the date of occurrence i.e. 18.03.2023) and that to after the proceedings of inquest and the post mortem had been completed. On the above premise, it is sought to be contended that there is a deliberate delay in lodging the FIR so that the prosecution could build up the case after the receipt of the medical evidence. Since the delay in lodging the FIR is a calculated delay and not on account of any bona-fide of the first informant and coupled with the fact that the said delay remains unexplained up to this stage, therefore, by virtue of the law laid down by the Apex Court in P. Rajagopal And Ors. Vs. The State of Tamil Nadu, AIR 2019 SC 2866 (paragraph 8), the prosecution of the applicants itself cannot be maintained.
20. With reference to the statements of the witnesses examined under Section 161 Cr.P.C., the learned counsel for applicants submit that as per the statement of Arvind Pandey, who is also the uncle of the deceased, the deceased was last seen in the company of named accused Sandeep Kanaujiya and the applicants. The silence on the part of the aforesaid witness for the period 18.03.2023 up to 22.03.2023 creates a doubt in the prosecution story which remains unremoved up to this stage. They, therefore, submit that the implication of the present applicants in the crime in question or statement of the aforesaid witness (uncle of the deceased) is an afterthought and therefore, not worthy of any credence or reliability.
21. In the submission of the learned counsel for applicants, the complicity of the applicants in the crime in question is further sought to be implicated on the basis of the statements of two independent witnesses namely - Rohit Shukla and Rajkumar Pandey who have been examined under Section 161 Cr.P.C. The learned counsel for applicants fairly submit that the independent character of these two witnesses is not disputed by them. However, the aforesaid two witnesses in their statements under Section 161 Cr.P.C. have not identified all the three charge sheeted accused. The only evidence that has emerged against applicants is that the charge sheeted accused were seen sprinkling water upon the body of deceased at around 01:00 to 02:00 PM in the night.
22. Much emphasis was laid on that fact that after the dead body of deceased was retrieved, two written reports was submitted before the concerned Police Station. First written report was submitted by Avnish Pandey (Father of the deceased) and the Second written report was submitted by Anita Pandey (Mother of the deceased). The said written reports have been brought on record as Annexure-1 and Annexure-3 to the affidavit filed in support of bail application of applicant-Santosh Kumar Patel. It is then submitted that both the written reports have been incorporated in the general diary of the concerned Police Station. Drawing a parallel between the two written reports as noted above, it is urged by the learned counsel for applicant-Santosh Kumar Patel that the two written reports when taken together reflect two different prosecution stories. The anomaly so occurring in the prosecution story in the written reports referred to above is a suspicious circumstance which runs against the prosecution but remains unexplained up to this stage. On the above premise, it is thus urged that the prosecution itself is not clear about the story which it wants to prove for inferring the guilt of the applicants.
23. It has been vehemently urged by the learned counsel for applicant-Santosh Kumar Patel that it is the admitted case of the prosecutrix as unfolded in the FIR that the deceased was carrying a sum of Rs. 4.25 lacs cash when he went out of home in the company of named accused Sandeep Kanaujiya. However, when the Investigating Officer examined the first informant regarding the source of money and how the said money came to the possessed by the deceased, no satisfactory reply could be given. He, therefore, contends that though FIR is not the encyclopedia of the prosecution case, but it must disclose the basic prosecution case. Since the prosecutrix has failed to explain the basic prosecution case as unfolded in the FIR, the FIR itself is false. As such, applicants have been falsely implicated and therefore, liable to be enlarged on bail.
24. It is lastly contended that simply on the basis of the recoveries made from the applicants, an inference of guilt of applicants in the crime in question cannot be inferred. They, therefore, submit that applicants have been falsely implicated in the crime in question. As such, they are liable to be enlarged on bail.
25. Even otherwise, applicant-Ankit Kumar Verma is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant-Santosh Kumar Patel has criminal history of one case i.e. Case Crime No. 379 of 2019, under Sections 392, 411 IPC, Police Station-Colonelganj, District-Allahabad. However, applicant-Santoshf Kumar Patel has already been enlarged on bail. Referring to the three judges judgments of the Supreme Court in Brijmani Devi Vs. Pappu Kumar and Another, (2022) 4 SCC 497, he submits that simply because applicant-Santosh Kumar Patel has criminal history of one case but that by itself cannot be taken as a ground to deny bail to the applicant-Santosh Kumar Patel. Applicants are in jail since 24.03.2023. As such, they have undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. They, therefore, submit 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.
26. In counter to the said submissions, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail urged on behalf of applicants. According to the learned A.G.A. as well as the learned counsel representing first informant, it is commonly urged that it is an undisputed fact that named accused Sandeep Kanaujiya as well as present applicants are the friends of the deceased-Vipul Pandey. There is no denial of the fact that the deceased last went in the company of named accused Sandeep Kanaujiya on 15.03.2023. It is also an undisputed fact that when the phone call was made by the mother to her son (deceased) at around 01:00 PM, the deceased is reported to have been in the company of named accused Sandeep Kanaujiya and the present applicants. It is thereafter, the mobile phone of the deceased went switched off. This incriminating circumstance which has emerged during course of investigation and is in the special knowledge of the accused applicants remain unexplained up to this stage. The recovery of the goods belonging to the deceased from the person of present applicants cannot be doubted simply on the ground that there is no independent witnesses of recovery, in view of law laid down by the Apex Court in Mukesh & Another Vs. State of (NCT of Delhi) & Others, (2017) 6 SCC 1, wherein it has been held that the recovery cannot be doubted simply on the ground that there is no independent witness of the recovery. How the said goods came in the possession of present applicants is a mystery and remains unexplained up to this stage.
27. Since the deceased last went in the company of named accused Sandeep Kanaujiya, who in his confessional statement has narrated the same story, which corroborates with the recoveries and the other material collected by the Investigating Officer during the course of investigation and the circumstances of the case that stand crystallized, therefore, the incriminating circumstances that have emerged against the applicants cannot be brushed aside, as they lead to the only inference regarding the presence of the accused at the time of occurrence.
28. As per the post mortem report, the deceased died on account of consumption of Ethyl Alcohol and Organo Chloro Insecticide. When the said circumstance is examined in the light of the admitted fact that the deceased was last in the company of named accused Sandeep Kanaujiya and his associates i.e. the applicants herein, coupled with the fact that as per the narration in the FIR, the deceased lastly went from his home in the company of named accused Sandeep Kanaujiya, therefore, the burden will shift upon the present applicants to explain as to how the said chemical compound came to be consumed by the deceased. There is a total silence on the part of the accused applicants with regard to the aforesaid circumstance that has emerged during the course of investigation.
29. On the above conspectus, it is thus urged by the learned A.G.A. as well as the learned counsel representing first informant that on the basis of the material collected by Investigating Officer up to this stage, only an inference of guilt of the present applicants can be inferred and no other hypothesis. They, therefore, submit that considering the age of the deceased who was a young boy aged about 25 years, the manner in which, the deceased was put to death and the nature and gravity of offence, applicants do not deserve any indulgence by this Court.
30 When confronted with above, the learned counsel for applicants could not overcome the same.
31. Having heard, the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that it is an undisputed fact that named accused Sandeep Kanaujiya as well as present applicants are the friends of the deceased-Vipul Pandey, there is no denial of the fact that the deceased last went in the company of named accused Sandeep Kanaujiya on 15.03.2023, it is also an undisputed fact that when the phone call was made by the mother to her son (deceased) at around 01:00 PM, the deceased is reported to have been in the company of named accused Sandeep Kanaujiya and the present applicants, thereafter, the mobile phone of the deceased went switched off, this incriminating circumstance which has emerged during course of investigation and is in the special knowledge of the accused applicants remain unexplained up to this stage, the recovery of the goods belonging to the deceased from the person of present applicants cannot be doubted simply on the ground that there is no independent witnesses of recovery, in view of law laid down by the Apex Court in Mukesh (Supra), wherein it has been held that the recovery cannot be doubted simply on the ground that there is no independent witness of the recovery, how the said goods of deceased came in the possession of the present applicants is also a mystery up to this stage, the deceased for the last time left his home in the company of named accused Sandeep Kanaujiya, the said accused in his confessional statement has narrated the same story, which corroborates with the recoveries and the other material collected by the Investigating Officer during course of investigation, as per the post mortem report, the deceased died on account of consumption of Ethyl Alcohol and Organo Chloro Insecticide, as per the narration in the FIR, the deceased lastly went from his home in the company of named accused Sandeep Kanaujiya, therefore, the burden will shift upon named accused Sandeep Kanaujiya and the present applicants to explain as to how the said chemical compound came to be consumed by the deceased, there is a total silence on the part of the accused applicants with regard to the aforesaid circumstance that has emerged during the course of investigation, therefore, irrespective of the varied submissions urged in support of the present applications for bail by the learned counsel for applicants but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicants on bail.
32. As a result, these applications for bail fail and are liable to be rejected.
33. They are, accordingly, rejected.
Order Date :- 27.9.2023 Vinay