Allahabad High Court
Dileep Sharma vs State Of U.P. Thru.Prin Secy. Home. Lko on 27 February, 2023
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2958 of 2023 Applicant :- Dileep Sharma Opposite Party :- State Of U.P. Thru.Prin Secy. Home. Lko Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
Heard learned counsel for the applicant and the learned Additional Government Advocate for the State.
This is the second bail application. The first bail application bearing Criminal Misc. Bail Application No.625 of 2019 has been rejected by Hon'ble Mr. Justice Ram Krishna Gautam (since retired) vide order dated 19.04.2022.
As per learned counsel for the applicant, the present applicant (Dileep Sharma) is languishing in jail since 16.01.2018 in Case Crime No.11 of 2018, under Sections 302, 201 & 147 I.P.C., Police Station-Hargaon, District-Sitapur.
Learned counsel for the applicant has stated that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story so narrated in the First Information Report (in short F.I.R.).
Learned counsel for the applicant has stated that more than five years period have passed since the present applicant is in jail. He has further submitted that the present applicant is not named in the F.I.R., however, his name has been surfaced during investigation, on the basis of statement of the co-accused.
Learned counsel for the applicant has drawn attention of this Court towards Annexure No.10 of the bail application, which is a bail order dated 19.04.2022 passed by this Court in the case of co-accused, Juber Ali in Criminal Misc. Bail Application No.1972 of 2020. The bail of co-accused (Juber Ali) was the third bail application and considering all facts and circumstances in details viz-a-viz the fact that there is no possibility to conclude the trial in near future. Therefore, this Court extended the benefit of the dictum of Apex Court in re: Union of India vs. K.A. Najeeb reported in AIR 2021 Supreme Court 712 granting bail to the co-accused (Juber Ali). For convenience, the order dated 19.04.2022 granting bail to co-accused, Juber Ali, reads as under:-
"Heard Sri Vaibhav Gupta, learned counsel for the applicant and learned Additional Government Advocate for the State.
This is the third bail application. The first bail application of the present applicant bearing Criminal Misc. Case No.8055 (B) of 2018 (Juber Ali vs. State of U.P.) along with other connected bail applications have been rejected on merits by Hon'ble Dinesh Kumar Singh, J vide order dated 11.01.2019. The second bail application bearing Criminal Misc. Case No.7114 (B) of 2019 (Juber Ali vs. State of U.P.) was released by Hon'ble Dinesh Kumar Singh, J vide order dated 02.08.2019. Thereafter, vide order dated 29.01.2020 the foresaid second bail application has been dismissed for want of prosecution by Hon'ble Mrs. Rekha Dikshit, J. (since retired).
Since Hon'ble Mr. Justice Dinesh Kumar Singh has released the second bail application and Hon'ble Mrs. Justice Rekha Dikshit, who has dismissed the second bail application for want of prosecution, has been retired, this third bail application has been put up before the regular Court.
As per learned counsel for the applicant, the present applicant is languishing in jail since 16.01.2018 in Case Crime No.11 of 2018, under Sections 147, 302, 201 & 376/34 I.P.C. and Section 3/4 of Protection of Children from Sexual Offences Act, Police Station-Hargaon, District-Sitapur.
Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in this case as he has not committed any offence as alleged in the prosecution story.
The attention of this Court has been drawn by learned counsel for the applicant towards the impugned First Information Report (in short F.I.R.) wherein no one is named. However, on the basis of investigation some accused persons including the present applicant have been implicated.
The perusal of rejection order of first bail application dated 11.01.2019 reveals that the entire prosecution story and the submissions of learned counsel for the applicant were precisely considered. In the aforesaid order, nothing specific has been noted relating to the present applicant by the Court and only this much has been indicated that the main accused, Naveen Kumar Gupta, has confessed his guilt naming other co-accused persons. For convenience, the first bail rejection order dated 11.01.2019 is being reproduced here-in-below:-
"1. In these applications moved for bail under Section 439 Cr.P.C. the accused-applicants sought their enlargement on bail in Case Crime No.11 of 2018, under Sections 147, 302, 201, 376/34 I.P.C. and Section 3/4 POCSO Act, Police Station Hargaon, District Sitapur.
2. Heard learned counsel for the accused-applicants as well as learned Additional Government Advocate and perused the entire record.
3. Complainant Satish Kumar, son of Ram Lotan gave a written report at Police Station Hargaon, stating therein that on 14th January, 2018 in the morning, when some boys went out to ease themselves, they noticed a sack at Kabirpur Bridge. The sack was taken out and when it was opened, it was found that inside this sack there was a dead-body of 10 years girl. Her mouth was closed by cello tape. Immediately, information was given to the police at Dial 100 Number and a written report was brought to the police station for taking appropriate action in the matter. On the same day, one Devki Nandan gave an oral information at the police station on which Sub-Inspector, Raj Kishore Yadav, the complainant along with police force went to Village Umariya at the culvert of Sharda Sub-Canal. They noticed one sack in the shallow water and when it was taken out then it was found that it had a dead-body of 9 years old girl.
4. Sub-Inspector, Raj Kishore Yadav, received information on R.T. set that one dead-body of a girl has been found at Raksa Bridge. The Sub-Inspector, Raj Kishore Yadav went to the Raksa Bridge where he found that the police force has already reached there.
5. Inquest proceedings were conducted. Two joot sacks, one bag of salt and one bag of small stones were seized and seizure memo was prepared. A case under Section 302/201 I.P.C. was registered. The information was published in newspapers and was shown in news channels and on the basis of said information, sister of father of the deceased girls gave information to the father of the deceased, namely, Praveen alias Sonu. Praveen alias Sonu reached to the mortuary and recognized the dead-bodies of his daughters. He gave the information that his wife Vibha Pandey got separated from him and for the last three years she was living along with her two deceased daughters and one Naveen Kumar Gupta, with whom she developed illicit relation.
6. During investigation, Naveen Kumar Gupta was interrogated. Naveen Kumar Gupta confessed that he along with other co-accused, who were his friends, murdered Vibha Pandey and her two daughters and they threw the dead-bodies of Vibha Pandey in Sarayan River and two other places from where the dead-bodies of two girls were recovered. Accused Rahul Lodh, during investigation, accepted that he arranged a black colour Xylo Car for disposing of the three dead-bodies.
7. On pointing out of the accused, dead-body of Vibha Pandey was recovered.
8. During investigation on 18th Jan., 2018 Xylo Car bearing Registration No. UP53-AL/2905 along with its driver/owner was recovered and they were arrested.
9. Later on, offence under Sections 147 and 376/34 I.P.C. and Section 3/4 POCSO Act were added.
10. On behalf of the accused-applicants, it is submitted that it is a case of circumstantial evidence and except alleged confessional statement of the accused, there was no evidence to connect the accused with commission of the offence. It is also submitted that the accused-applicants have been falsely implicated and they are in jail since 18.01.2018, 19.01.2018 and 16.01.2018 respectively and, therefore, they should be enlarged on bail.
11. The confessional statement given to the police by accused Naveen Kumar Gupta is on record.
12. In the confessional statement of Naveen Kumar Gupta, it has been stated that Vibha Pandey got married with Praveen Pandey fourteen years before the date of incident. Out of wedlock with Praveen Pandey, deceased Vibha Pandey gave birth to two daughters, namely, Aradhya and Arana, who were aged about 10 years and 9 years at the time of incident. It has further been stated that deceased Vibha Pandey got separated from her husband, Praveen Pandey six years before and she was living with her two daughters at Alam Nagar, Police Station Kotwali, Sitapur. He came into contact of Vibha Pandey three years before the date of incident. He was unmarried and they started living together as husband and wife. However, Vibha Pandey did not stop her relationship with other men and, therefore, he along with other accused, namely, Dilip Sharma, Rahul, Pakaj, Mukesh and Juber in a well-planned conspiracy committed the murder of the three deceased. It was also said that accused Mukesh raped Aradhya, elder daughter of Vibha Pandey, before the daughters were murdered. He brought Vibha Pandey to Sharma Mobile Shop where other accused, named above, were present and they strangulated the deceased Vibha Pandey. Thereafter, two daughters were brought there and accused Mukesh committed rape on elder daughter Aradhya and, thereafter, by using Xylo Car, arranged by accused Rahul, the dead-bodies were disposed of.
13. I have considered the submissions made by learned counsel for the parties carefully and the allegations against the accused-applicants.
14. It is a heinous offence in which three persons, including two innocent girls along with their mother, have been brutally killed/murdered and their dead-bodies were disposed of by the accused. One of the accused allegedly committed rape on a minor girl aged about ten years and, thereafter, she and her younger sister were murdered. The gruesome murder of three females would have certainly shocked the society and seeing heinousness of the crime, no leniency can be shown to the accused even though it appears to be a case of circumstantial evidence.
15. In totality of the facts and circumstances of the case, nature of the offence, status of the victim and societal impact of the crime, it would not be be appropriate to enlarge the accused-applicants on bail.
16. Accordingly, their prayer for bail is refused and the bail applications are hereby rejected."
Sri Vaibhav Gupta, learned counsel for the applicant has submitted that since the present applicant was not involved in the incident in question, therefore, nothing incriminating has been recovered from his possession. In the joint recovery memo, on the pointing out of main accused, Naveen Kumar Gupta, along with other co-accused persons the dead body of the victim has been recovered.
As per learned counsel for the applicant, on the basis of alleged recovery memo wherein the name of the main accused, Naveen Kumar Gupta, as well as other co-accused persons has been indicated has got no evidentiary value in the eyes of law for the reason that the prosecution is duty bound to establish its case beyond all reasonable doubts and if the alleged recovery memo is saying about so many accused persons who were not even related with each other may create suspicion on the prosecution story.
Learned counsel for the applicant has submitted that extra judicial confession of the present applicant was recorded by the police under the custody which has been enclosed as Annexure No.7 with the bail application. Except the aforesaid extra judicial confession of the present applicant no other incriminating material has been recovered by the Investigating Agency suggesting that the present applicant was involved in committing the crime along with main accused, Naveen Kumar Gupta.
Further attention of this Court has been drawn towards the supplementary affidavit filed on 08.03.2022 to show the statement of PW-1, PW-2, PW-3, PW-4, PW-5, PW-6 & PW-8, which have been annexed as Annexure No.SA-1 to such affidavit. PW-1 and PW-2 are the Sub-Inspectors who have not said anything against the present applicant; PW-3, PW-4 & PW-8 are the persons who have seen the dead body of the deceased and they have also not stated against the present applicant; PW-5 is owner of one Computer Shop who has named the main accused Naveen Kumar Gupta but has not said anything against the present applicant. PW-6 is the brother of the deceased who has not stated anything against the present applicant.
Learned counsel for the applicant has further submitted that in the present case, there are no fact witnesses as such but there are total 44 prosecution witnesses. Out of those witnesses material witnesses have already been examined. Since nothing has been alleged against the present applicant in the F.I.R. or in the statement of witness at the time of investigation or in the chief-examination/ cross-examination before the court, therefore, the present applicant may be released on bail considering his period of incarceration i.e. about four years and five months.
Learned counsel for the applicant has further submitted that there is no possibility to conclude the trial in near future, therefore, in view of the dictum of Hon'ble Apex Court in re: Union of India vs. K.A. Najeeb AIR 2021 Supreme Court 712 and Paras Ram Vishnoi vs. The Director, Central Bureau of Investigation passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020 granting bail to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration of that accused, therefore, they were entitled for bail. Para-16 of the case K.A.Najeeb (supra) is being reproduced here-in-below:-
"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."
The Apex Court in the case of Paras Ram Vishnoi (supra) has observed as under:-
"On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."
Learned counsel for the applicant has further drawn attention of this Court towards the dictum of Apex Court rendered in re: Gokarakonda Naga Saibaba vs. State of Maharashtra reported in (2018) 12 SCC 505 wherein the Apex Court has observed that if the material and fact witnesses have been examined, the bail of the accused persons may be considered.
Learned counsel for the applicant has placed reliance upon the recent judgment of Apex Court dated 25.02.2022 in re: Saudan Singh vs. The State of Uttar Pradesh passed in Criminal Appeal No.308 of 2022 (@ SLP (Crl.) No.4633 of 2021), wherein the Apex Court has held that period of long detention of the accused may be considered even if the issue is pending consideration before the Appellate Court.
The present applicant has got no previous criminal history. If the present applicant is enlarged on bail, he shall co-operate with the trial proceedings and shall not misuse the liberty of bail and shall abide by all terms and conditions of bail order.
Learned Additional Government Advocate has vehemently opposed the prayer for bail of the present applicant by submitting that since this is a case of brutal murder wherein the present applicant is one of the co-accused so he may not be enlarged on bail. However, direction to expedite the trial may be issued.
Heard learned counsel for the applicant and perused the material available on record.
Since the present applicant has not raised any ground in his third bail application which could have been raised at the time of first or second bail application and has only pressed his third bail application after showing the chief-examination and cross-examination of the relevant witnesses i.e. PW-1 to PW-8 and pressing the point that his long period of incarceration may be considered in light or circumstances that early conclusion of trial is not possible so I am only considering the aforesaid aspect. Prima-facie, the material available on record, the fact that the main accused is Naveen Kumar Gupta, the material witnesses i.e. PW-1 to PW-8 while their chief examination and cross-examination have not alleged against the present applicant, there are total 44 prosecution witnesses, out of them only 08 witnesses have been cross-examined, therefore, there is no possibility to conclude the trial in near future. After cross-examination of the aforesaid witnesses i.e. PW-1 to PW-8 there may not be any possibility of influencing any witnesses inasmuch as the aforesaid witnesses are appear to be material witnesses, however, if at any stage the prosecution finds that present applicant is influencing any witnesses or tampering with any evidence an appropriate application for cancellation of bail may be filed, which may be considered at the earliest.
In view of the peculiar fact and circumstances of the present case, allegations of the F.I.R., statement of PW-1 to PW-8, his period of incarceration i.e. about four years and five months, the various dictum of Apex Court and without expressing any opinion on merits of the case, I am of the opinion that this bail application is liable to be allowed.
The bail application is, therefore, allowed.
Let the applicant-Juber Ali, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two local and heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(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. is issued and the applicant fail 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 applicant shall not leave the country without prior permission of the Court.
Before parting with, it is expected that the trial shall be concluded with expedition in terms of Section 309 Cr.P.C. Further, the learned trial court may take all coercive measures as per law if either of the parties do not co-operate in the trial properly."
Learned counsel for the applicant has stated that the present applicant seeks parity with the bail order being granted in favour of co-accused, Juber Ali and still the fact remains that there is no possibility to conclude the trial in near future. Therefore, considering the period of incarceration of the present applicant i.e. more than five years, he may be enlarged on bail. Further, the present applicant undertakes that if he is released on bail he shall not misuse the liberty of bail and shall co-operate in the trial proceedings properly and shall abide by all terms and conditions of bail order.
Per contra, learned Additional Government Advocate has opposed the prayer for bail and has submitted that the name of the present applicant has been surfaced during investigation on the basis of statement of the co-accused, therefore, his bail application may be rejected. However, on the point that co-accused has been granted bail, learned Additional Government Advocate has stated that he has nothing to say as the same is a matter of record.
Therefore, without entering into merits of the issue, considering the arguments of learned counsel for the parties, the contents and allegations of the F.I.R., the fact that the co-accused, Juber Ali, with whom the present applicant has sought parity so far as the role is concerned, the period of incarceration of the present applicant i.e. more than five years, the fact that there is no possibility to conclude the trial with expedition and the undertaking of the present applicant that he shall not misuse the liberty of bail and shall abide by all terms and conditions of the bail order and shall co-operate in the trial proceedings properly, I am of the view that the present applicant may be released on bail.
Let the present applicant (Dileep Sharma) be released on bail in the aforesaid case crime number 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:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 applicant shall not leave the country without prior permission of the Court and he shall surrender his pass-port to the court concerned.
Order Date :- 27.2.2023 [Rajesh Singh Chauhan,J.] Suresh/