Allahabad High Court
Manish Ram vs State Of U.P. And 3 Others on 29 March, 2023
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 765 of 2023 Applicant :- Manish Ram Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Giri Ram Rawat,Indra Deo Mishra,Shri Ram (Rawat) Counsel for Opposite Party :- G.A. Hon'ble Saurabh Shyam Shamshery,J.
1.Heard Sri Indra Deo Mishra, learned counsel for the applicant, Sri Markandey Singh, Brief Holder for State and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.49 of 2022, under Sections 364A, 302, 201, 377 I.P.C. and 5M/6 POCSO Act, Police Station-Rani Ki Sarai, District-Azamgarh after rejection of his Bail Application vide order dated 17.5.2022 passed by Special Judge (POCSO Act), Azamgarh.
3. Brief Holder on behalf of State on written instructions states that information of this bail application has been given to the complainant on 6.1.2023, however, no one has entered appearance.
4. Father of the victim initially lodged an F.I.R. that his son/victim aged about 5 years was missing since 4.30 P.M. on 11.2.2022.
5. Informant gave his statement before Investigating Officer disclosing that he has received a letter demanding a ransom of Rs.70 lakhs to release his son as well as the children who were playing along with his son told that applicant has given Toffee to the victim and enticed him to go along with the applicant for more Tofees.
6. During investigation, on the pointing out of applicant, dead body of victim was recovered from the house allegedly belonging to grand father of applicant from a sack placed on shed 'taad'.
7. According to postmortem report, immediate cause of death was 'Asphyxia' due to antemortem Throttling as well as there was a contusion on the top of head.
8. Learned counsel for the applicant submits that applicant has been falsely implicated in the present case. The alleged motive is an incident occurred wayback in 2011,that some 'Maarpeet' took place between family members of complainant and Naana of the applicant however, said motive cannot be considered to be a strong motive. He further submitted that applicant does not reside at the house of his Naana and normally resides at the place which is few kilometres away from the place of occurrence.The recovery of a cap and mobile was false being without presence of any independent witness. The evidence in regard to call of ransom message does not substantiate by any evidence collected during investigation.
9 Statement of children who were allegedly playing along with the deceased were not recorded. Further development in the prosecution story in regard to allegations of sodomy is also without any cogent evidence.
10 Learned counsel for the applicant further submitted that under the above circumstances, burden of proof does not shift upon the applicant.
11. Learned counsel for the applicant also referred to postmortem report that since the Hyoid bone was found congested, therefore, it may not be a case of Throttling.
12. Learned counsel for the applicant submitted that police has framed a false story also that during recovery process applicant tried to flee away by snatching country made pistol and also fired which indicates that police and complainant were bent upon to implicate the applicant in any manner.
13, Learned counsel for the applicant lastly submitted that there is no eye witness account to the occurrence and the applicant is in jail since 13.2.2022 and trial is proceeding at snail's pace, therefore, applicant may be released on bail and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
14. Per contra, learned Brief Holder for State has vehemently opposed the bail application and submitted that during investigation statement of a child who was playing alongwith the deceased was recorded who in specific words stated that applicant has accompanied deceased for giving him more toffee. The other circumstances, such as recovery of a dead body on the pointing out of applicant, recovery of cap of deceased and mobile phone as well as motive though weak form a chain of circumstances which indicates that the applicant has committed crime, therefore, the burden shifts upon the applicant to the extent as to how the dead body was found from his maternal grand father's house as deceased was lastly seen with him.
15.LAW ON BAIL - A SUMMARY (A) The basic rule may perhaps be tersely put as bail, not jail.
(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.
(C) While passing an order on an application for grant of bail, there is not need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.
(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.
(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559).
16.As referred above, in the present case, a five year young boy was killed. There is an evidence against the applicant of last seen as well as that on his pointing out dead body of deceased was recovered from his Naanas house kept in a sack at a shed (Taad) and further that on his pointing out, cap of deceased and a mobile phone was also recovered, therefore considering the above circumstances and considering that cause of death is due to ante-mortem throttling prima-facie indicates the involvement of applicant in crime.
17 The other submission of learned counsel for the applicant in regard to alleged weak motive that he was normally residing at a distant place and Hyoid bone was found congested would not have much legal consequence since the circumstances referred above prima-facie completes the chain which prima-facie indicates involvement of applicant in the offence and the burden shifts upon the applicant.
18. It would be apposite to refer to paragraph no.23 of State of Rajasthan vs. Kashi Ram, 2006 (12) SCC SCC 254, in regard to burden of proof.
"23. It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd., Re. [AIR 1960 Mad 218 : 1960 Cri LJ 620]".
(Emphasis supplied)
19. In view of the above discussion, I do not find any reason to grant bail to the applicant.
20. Bail application is rejected.
Order Date:-29.3.2023 SB