Allahabad High Court
Sachin Kumar vs State Of U.P. on 16 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:27450 Court No. - 5 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35472 of 2023 Applicant :- Sachin Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Pramod Kumar Dwivedi Counsel for Opposite Party :- G.A.,Dr. Akhilesh Kumar Hon'ble Rajeev Misra,J.
1. Heard Mr. Pramod Kumar Dwivedi, the learned counsel for applicant, the learned A.G.A. for State and Mr. Dr. Akhilesh Kumar, the learned counsel representing first informant.
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Sachin Kumar, seeking his enlargement on bail in Case Crime No. 346 of 2021, under Sections 302, 404 IPC, Police Station- Hathras Junction, District- Hathras during the pendency of trial i.e. Session Trial No. 223 of 2022 (State Vs. Sonu Alias Goonga) under Sections 302, 404 IPC, now pending in the court of Special Judge, S.C./S.T. Act, Hathras.
4. The first bail application of applicant was rejected by this Court by a detailed order dated 20.12.2022 passed in Criminal Misc. Bail Application No.20249 of 2022 (Sachin Kumar Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-
"1. Heard Mr. Anil Kumar, the learned counsel for applicant, the learned A.G.A. for State and Dr. Akhilesh Kumar, the learned counsel for first informant.
2. Perused the record.
3. Instant bail application has been filed by applicant-Sachin Kumar seeking his enlargement on bail in Case Crime No. 346 of 2021 under Sections 302, 404 I.P.C., Police Station-Hathras Junction, District-Hathras, during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 03.12.2021, a prompt F.I.R. dated 03.12.2021, was lodged by first informant-Sri Sandeep Kumar and was registered as Case Crime No. 346 of 2021 under Section 302 I.P.C., Police Station-Hathras Junction, District-Hathras. In the aforesaid F. I.R., an unknown persons have been arraigned as an accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that some unknown person caused the murder of Rakesh Kumar i.e. Mama of first informant in his house.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. Inquest (Panchayatnama) of the body of deceased was conducted on 03.12.2021. In the opinion of witnesses of inquest (panch witnesses), nature of death of deceased was characterised as homicidal. The cause of death of deceased was said to be the head injury sustained by the deceased. Subsequent to above, post-mortem of the body of deceased was conducted on the next day i.e. 04.12.2021.The Doctor, who conducted autopsy of the body of deceased found following ante mortem injuries on his body :-
"i. Multiple IW left side of heard just below to left external ear 4 x 1cm in size no cut wound is is 3 no. cut wound 2 cm bigger in size rest 2nd & 3rd woujd is 1 cm. in sizee.
ii. IW left side at left external ear which 3 cm in size.
iii. IW(Incised wound) right side of head 9x1 cm in size with fracture of right temporal parietal bone which is 2 cm below from right external ear.
iv. Multiple lacerated wound back of head around occipital regioon No. of wound 3 in no. which is 4 x 1 size 1st wound and 2nd & 3rd is Ist cm in size.
v. IW right parietal head 5 x 015 cm size just above to right angle at eyebrow.
vi. IW right frontal head 3 x 0.5 cm in size 1 cm above from right upper eyebrow.
vii. I.W. right side of face 1 x 0.5 cm in size 1 cm below from lower eyelid.
viii. IW on left side of chin 4 x 0.5 cm in size 3 cm below from lower lip below from injury No.9.
ix. IW on left side of chin 5 x 0.5 cm in size 2 cm.
x. Incised wound (IW) present over neck which is 10x3 cm size with rupture of Adam's apple and both external jugular vein and carotial artery.
xi. Abrasion present over lower neck 12x0.5 cm in size which is extened to both side of supra clavicular region.
7. In the opinion of Autopsy Surgeon the cause of death of deceased was shock and haemorrhage as a result of ante mortem injury.
8. During course of investigation, Investigating Officer examined first informant Sandeep Kumar under Section 161 Cr.P.C. who has supported the F.I.R. Thereafter, Investigating Officer examined Rajendar Singh (brother of first informant) under Section 161 Cr.P.C. This witness has stated that applicant and co-accused Sonu @ Gunga made extra judicial confession before this witness regarding their complicity in the crime in question.
9. On the basis of above and other material collected by Investigating Officer during course of investigation, the statements of the other witnesses examined under Section 161 Cr.P.C. complicity of present applicant and Sonu @ Ganga came to surfae. They were accordingly arrested.
9. On the pointing of applicant Sandeep Kumar following articles were recovered:
Sickle, broken brick, knife, T. V. Remote belonging to the deceased.
10. On the pointing of applicant Sonu @ Gunga following articles were recovered:
scissor, knife and one blower belonging to the deceased.
11. Subsequently, statements of arrested accused were recorded, who confessed themselves that they have committed the crime in question. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant Sachin Kumar and Sonu @ Gunga is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 04.09.2022 whereby applicant Sachin Kumar has been charge sheeted under Sections 302 and 404 I.PC.whereas co-accused Sonu @ Gunga has been charge-sheeted under Sections 302, 404 I.P.C. and Sections 3(2) 5 SC/ST Act.
12. Learned counsel for applicant contends that applicant is innocent. Applicant is not named in the F.I.R. He has been falsely implicated in afore-mentioned case crime number. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence. Complicity of present applicant in the crime in question is alleged on the basis of alleged recovery. The same is false and implanted as there is no independent witness of the same. The confessional statement of applicant and co-accused cannot be classified as evidence for concluding that complicity of applicant is established in the crime in question as same is not admissible by virtue of Section 25 of the Evidence Act. It is then contended that present case is a case of circumstantial evidence, therefore, complicity of applicant in the crime in question has to be examined in the light of parameters laid down by Apex Courtfor deciding a case based upon circumstantial evidence in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622. Paragraph 152 of the report is relied upon by learned counsel for applicant wherein Court has crystalized the parameters which are necessarily required to be satisfied. With reference to above, learned counsel for applicant contends that parameters laid down by Apex Court in aforesaid judgement are not satisfied against applicant upto this stage. Motive behind the occurrence has not been fully established nor the incriminating circumstances that have emerged against applicant during course of investigation are in-proximity to time and manner of occurrence, which may point at the guilt of applicant and no other hypothesis. It is lastly contended that even otherwise applicant is a man of clean antecedents in asmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 08.12.2021. As such, he has undergone more than one year of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is also liable to be enlarged on bail.
13. Per contra, the learned A.G.A. for state and the learned counsel for first informant have opposed the present application for bail. They jointly submit that recovery of weapon of assault and other article belonging to deceased have been recovered on the pointing of applicant. The said recovery cannot be said to be false simply on the ground that there is no independent witness of the recovery of weapons and other articles. In support of above submission, learned A.G.A. has placed reliance upon the Judgement of Apex Court in Mukesh Vs. State of NCT of Delhi (2017) 6 SCC 1, They further submit that since the applicant is a charge-sheeted accused and considering the nature and gravity of offence, applicant does not deserve any indulgence by this Court, therefore, present applicant for bail is liable to be rejected.
14. When confronted with above, learned counsel for applicant could not overcome the same.
15. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for first informant and upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that recovery of weapon of assault and other article belonging to the deceased has been made on the pointing of applicant which prima-facie are the articles used in the commission of crime in question but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
16. Consequently, present application fails and is therefore liable to rejected.
17. Accordingly, present application for bail is rejected."
5. Learned counsel for applicant contends that though applicant is a charge-sheeted accused, yet he is liable to be enlarged on bail. Applicant is in custody since 08.12.2021. As such, he has undergone more than two years and two months of incarceration. Considering the period of incarceration undergone by applicant, he is liable to be enlarged on bail. It is then contended that charge sheet was submitted against applicant on 26.02.2022. After submission of aforementioned charge sheet cognizance was taken upon same by concerned Magistrate. As offence complained of is cognizable by the Court of Sessions, resultantly, concerned Magistrate committed the case to the Court of Sessions. Thereafter, charges were framed against applicant vide framing of charge order dated 05.05.2022. Since then, a period of more than one year and nine months has rolled by. However upto this stage, only one prosecution witnesses namely Sanjeet Kumar has been examined upto this stage. He, therefore, contends that the trial is proceeding at a snail's pace. Attention of the court was then invited to the judgment of Supreme Court in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225. On basis thereof, the learned counsel for applicant contends that an accused also has a fundamental right to speedy trial. As such, applicant is in jail, he therefore cannot be held responsible for the delay in conclusion of trial. Since in the present case, the aforesaid fundamental right of applicant stands infringed, therefore, he is liable to be enlarged on bail.
6. Even otherwise, 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 08.12.2021. As such, he has undergone more than 2 years and 2 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 applicant stands crystallized. However, up to this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
7. Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. He submits that applicant has been charge sheeted for an offence under Section 302 I.P.C. Therefore, the period of incarceration undergone by applicant is by itself not so sufficient so as to enlarge the applicant on bail. It is then contended that recovery of the articles belonging to the deceased and the weapon of assault used in the commission of crime were recovered on the pointing of applicant. Prima facie, the same cannot be doubted at this stage. The learned A.G.A. then submits that upto this stage, two prosecution witnesses of fact, namely Sanjeet Kumar as PW 1 and Pradeep Kumar as PW2 have been examined upto this stage. He further contends that recall application in terms of Section 311 Cr.P.C. was filed by another accused seeking recall of the PW1. The said application was allowed and accordingly PW1 was recalled for further examination-in-chief. His examination-in-chief has concluded only on 14.02.2024. On the above premise, it is thus urged that it cannot be said that the trial is proceeding at a snail's pace or there is lethargy on the part of prosecution in pursing the trial. On the cumulative strength of above, the learned A.G.A. and the learned counsel representing first informant vehemently submit that no new good or sufficient ground has emerged to enlarge the applicant on bail. As such, this repeat application for bail is liable to be rejected.
8. When confronted with above, the learned counsel for applicant could not overcome the same.
9. Having heard, the learned counsel for applicant, 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, accusation made and coupled with the fact that the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail, but without making any comments on the merits of the case, this Court does not find any new good or sufficient ground to enlarge the applicant on bail.
10. As a result, the present repeat application for bail fails and is liable to be rejected.
11. It is, accordingly rejected.
Order Date :- 16.2.2024 Imtiyaz