Allahabad High Court
Raja Dwivedi @ Shivnaresh Dwivedi vs State Of U.P. on 17 October, 2025
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:192554 Reserved on : 04.08.2025 Delivered on : 17.10.2025 Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46309 of 2023 Applicant :- Raja Dwivedi @ Shivnaresh Dwivedi Opposite Party :- State of U.P. Counsel for Applicant :- Kripa Kant Pandey,Pratikdhar Dwivedi,Rahul Kumar,Rajiv Lochan Shukla Counsel for Opposite Party :- Akash Kishan,Ashok Gupta,G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28170 of 2024 Applicant :- Shiv Kumar Patel Opposite Party :- State of U.P. Counsel for Applicant :- Shobhit Yadav Counsel for Opposite Party :- Akash Kishan,Ashok Gupta,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajiv Lochan Shukla, alongwith Mr. Pratikdhar Dwivedi, the learned counsel for applicant-Raja Dwivedi @ Shivnaresh Dwivedi in Criminal Misc. Bail Application No. 46309 of 2023 (Raja Dwivedi @ Shivnaresh Dwivedi Vs. State of U.P.), Mr. Shobhit Yadav, the learned counsel for applicant-Shiv Kumar Patel in Criminal Misc. Bail Application No. 28170 of 2024 (Shiv Kumar Patel Vs. State of U.P.), the learned A.G.A. for State-opposite party-1 and Mr. Akash Kishan, the learned counsel representing first informant.
2. Perused the record.
3. These repeat applications for bail have been filed by applicants-Raja Dwivedi @ Shivnaresh Dwivedi and Shiv Kumar Patel seeking their enlargement on bail in Case Crime No. 95 of 2022, under sections 147, 302, 201/34 IPC, Police Staiton-Atarra, District-Banda, during the pendency of trial i.e. Sessions Trial No. 579 of 2022 (State Vs. Raja Dwivedi and Others), under sections 147, 302/34, 201/34 IPC, Police Staiton-Atarra, District-Banda now pending in the Court of Vth Additional Sessions Judge, Banda.
4. The first bail applications of applicants were rejected by this Court, vide order dated 12.04.2023 passed in Criminal Misc. Bail Application No. 31890 of 2022 (Raja Dwivedi @ Shivnaresh Dwivedi Vs. State of U.P.) decided along with Criminal Misc. Bail Application No. 33865 of 2022 (Shiv Kumar Patel Vs. State of U.P.), Criminal Misc. Bail Application No. 37798 of 2022 (Saurabh Gupta @ Hanuwa Gupta Vs. State of U.P.) and Criminal Misc. Bail Application No. 33855 of 2022 (Rajendra Dwivedi Vs. State of U.P.). For ready reference, the order dated 12.04.2023 is reproduced herein below:-
1. Heard Mr. Manish Tiwari, the learned Senior Counsel assisted by Mr. Atharva Dixit and Mr. Aushim Luthra, the learned counsel for applicants, the learned A.G.A. for State and Mr. Akash Kishan, the learned counsel for first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants, Raja Dwivedi @ Shivnaresh Dwivedi, Shiv Kumar Patel, Saurabh Gupta @ Hanuwa Gupta and Rajendra Dwivedi seeking their enlargement on bail in Case Crime No. 95 of 2022, under Sections 147, 302, 201/34 IPC, Police Station- Atarra, District Banda during the pendency of trial.
4. Record shows that an incident occurred on 10.4.2022 on the Railway Track, near canal i.e. Atarra Khurkhand Section at Km. 1349/16, in which a human being was run over by a moving train. The information of the said incident was reported by the Loco Pilot namely, Kuldeep Chaudhary of Train No. 15205 DN Lucknow Jabalpur, Chitrakoot Express to the Station Master of Atarra Raiway Station, District Banda.
5. Subsequently, Kamlesh Kumar, Point Man, Railway Station-Atarra, District- Banda gave information regarding aforesaid incident at the Police Station Atarra, District- Banda.
6. On the aforesaid information, the Police of Police Station- Atarra, District-Banda arrived at the place of incident/accident and recovered the dead body. Thereafter, the proceedings of inquest (panchayatnama) of the deceased commenced. The Station House Officer, of Police Station- Atarra, District Banda appointed the witness of inquest (Panch Witnesses) namely, Gaurav Kumar, Raj Kumar, Shekhar Lal, Anoop Kumar Gupta and Jugal Kishore. In the opinion of witness of inquest (Panch Witnesses), the death of deceased was characterized as suicidal. After the proceedings of inquest (Panchayatnama) were over, the Station House Officer of Police Station Atarra, District Banda prepared the detailed Police Scroll including the (recovery memo/seizure memo) of the articles recovered from the body of deceased. Thereafter, the body of the deceased was dispatched for post mortem. The Post Mortem of the body of deceased was conducted on the same day i.e. on 11.4.2022. The Autopsy surgeon found following anti-mortem injuries on the body of deceased:-
(i). Crush injury at neck.
(ii). Multiple abrasion and Contusion about (13x9) cm at Left face.
(iii). Lacerated wound about (3x1.5) cm at flexor aspect of wrist.
(iv). Left Mandible.
7. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante-mortem injury. However the Autopsy Surgeon could not conclude as to whether the death of deceased is homicidal or suicidal.
8. Looking into the nature of incident, the aid of forensic experts was also obtained. Accordingly, the forensic team visited the places of occurrence and upon evaluation of the same i.e. (premises of the Model Wine Shop), the railway track and the material collected by them including the blood stains found on the trolley of the tractor, they came to the conclusion that the death of deceased is not suicidal but homicidal. The same is explicit from the Forensic Science Laboratory Report (F.S.L) dated 15.4.2022.
9. After expiry of a period of four days from the date of aforementioned incident, a belated F.I.R. dated 14.4.2022 was lodged by first informant Jagdish Prasad Gupta (father of deceased), which was registered as Case Crime No. 95 of 2022, under Sections 147, 302, 201/34 IPC, Police Station- Atarra, District Banda. In the aforesaid F.I.R. four persons namely, Raja Dewivedi, Rajendra Dwivedi, Saurabh @ Hanua Gupta and Baura Yadav were nominated as named accused.
10. Subsequent to the registration of above mentioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, Investigating Officer, examined the following witnesses:
(1) Kamlesh Kumar (Point Man, Railway Station- Attarra, Banda) (2) Kuldeep Chaudhary (Driver of Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express) (3) Constable Pawan Kumar Pal (4) Constable Ranjit Singh (5) Jugal Kishore (father of deceased) (first informant) (6) Himmat Singh (7) Lalit Kumar Gupta (8) Munna Gupta (mama) (9)Subham Sahu (10) Rinkoo Gupta (11) Genda Singh (Owner of Coutnry Liquor shop adjacent to Model shop) (12) Pranjul Soni (Mechanic of CCTV) (13) Golu @ Ankit Verma (Eye witness) (14) Umakant Upadhyay (sales man-eye witness of assault on deceased) (15) Pramod Upadhyay (16) Atul Dixit (17) Ravi Jaiswal (18) Suraj Gupta (19) Ramdas Yadav (20) Saurabh Singh (21) Shiv Pujan Chaurasia
11. Since much reliance was placed upon the statements of some of the witnesses by the learned A.G.A. in support of his submission that present case is a case of direct evidence and not circumstantial evidence, therefore, the genesis of the statements of aforementioned witnesses are mentioned hereinunder:-
11.1. Kamlesh Kumar, Point Man, Railway Station Attarra, Banda. This witness is a railway employee. At the relevant point of time, he was working as Point Man, Railway Station Attarra, Banda. After the incident had occurred i.e. when Train No. 15205 DN Lucknow-Jabalpur-Chitrakoot Express ran over a human being who was lying on the railway track (Attarra Khurhan Section at km 1349/16) near the canal, this witness informed the police at police station-Attarra, District-Banda, about the occurrence. He further disclosed that the information regarding the accident has also been given by the Loco Pilot of aforesaid train to the Station Master of Railway Station-Attarra, Banda. On the information of this witness, the inquest (Panchayatnama) of the deceased was conducted.
11.2. Kuldeep Chaudhary (Driver of Train No. 15205 Down Lucknow-Jabalpur-Chitrakoot Express). This witness is a railway employee and is working as a Loco Pilot. On the fateful day, this witness was driving aforementioned train. After the incident occurred, this witness informed the Station Master, Railway Station Attarra, Banda on the Walki-Talkie of the Guard of aforementioned train, about this incident.
11.3. Constable Pawan Kumar Pal and Constable Ranjeet Singh. These witnesses are working as Police Constable in UP Police. After the incident was reported at police station Attarra, Banda, Constable Pawan Kumar Pal along with Constable Ranjeet Singh reached the place of occurrence. These witnesses in their statements under Section 161 Cr.P.C. have clearly stated that when they proceeded for the place of incident, Saurabh Gupta @ Hanua accompanied them. However, when they reached the place of incident, Hanua seeing the shattered body exclaimed that has he died. On query being raised by the police personnel with Saurabh Gupta @ Hanua regarding identity of deceased, he clearly denied. They have further stated that thereafter, two other persons namely Raja Dwivedi and Baura Yadav came on the spot. All the three were talking to each other but they did not identify the deceased. Subsequently, Lalit (Mama of deceased) and Jugal Kishore (father of deceased) also reached the spot on the information given by Himmat Singh. At this juncture, Saurabh Gupta @ Hanua had hot talk with Lalit regarding the earlier incident in which Raja Dwivedi, Baura Yadav and others had assaulted the deceased.
11.4. Jugal Kishore (first informant/father of deceased). This witness is the first informant as well as father of the deceased (Atul Gupta). This witness in his statement before the Investigating Officer has stated that on 10.04.2022, Ram Navami was being celebrated. He was present at home. One Umakant Upadhyay, Sales Man at Model Wine Shop owned by Raja Dwivedi gave a call from his Mobile Number 7905961553 to this witness, Jagdish and Lalit Gupta. He disclosed about the incident in which Atul Gupta, son of this witness, was being assaulted by four persons namely Raja Dwivedi @ Shiv Naresh, Baura Yadav and Rajendra Dwivedi along with Ravi Jaiswal who operates the canteen at the Model Wine Shop on the charge of his having stolen Rs. 30,000/-. On this information, this witness along with Jagdish reached the place of occurrence and saw that his son was being badly assaulted by Raja Dwivedi @ Shiv Naresh, Baura Yadav, Rajendra Dwivedi and Ravi Jaiswal with Danda, Chaila (flat piece of wood) and Patra (also a flat piece of wood). Upon request made by this witness not to beat his son, Rajendra Dwivedi stated only when Rs. 30,000/- are given, he shall allow Atul Gupta to leave the premises. At this stage, Lalit Gupta, nephew of this witness requested Raja Dwivedi to leave Atul Gupta and the money shall be returned. But the associates of Raja Dwivedi were adamant. On enquiry Atul clearly stated that he has not stolen any money. A false charge has been levelled against him. They thereafter requested Atul Gupta to return home but he refused probably on account of treat. This witness has further stated that he reached the Model Wine Shop at 5:00 PM and left the same at 6:15 PM. They assured Raja Dwivedi that after being satisfied he may leave his son. At around 11:39 PM, information was received by Harishit @ Golu (brother of Atul Gupta-deceased) that the dead body of his brother is lying on the railway track. Thereafter, Golu disclosed this information to his father and then they reached the place of occurrence. He has further stated about the visuals seen by him on the CCTV footage.
11.4. Himmat Singh. This witness in his statement before the Investigating Officer has stated that information regarding the death of deceased i.e. Sugam Gupta @ Atul Gupta was received by him on his mobile phone as well as by whatsapp message. It is, thereafter, that this witness disclosed the aforesaid information to his friend Harshit Gupta (brother of deceased Atul Gupta). Upon receipt of this information, the family members of deceased reached the place of occurrence.
11.5. Lalit Kumar Gupta (Mama of deceased). This witness is the maternal uncle (Mama) of the deceased. The statement of this witness is substantially identical to that of Jugal Kishore (father of deceased). He has further stated that after the deceased Atul Gupta was returning from the home of his another maternal uncle namely Munna Gupta he was again caught by Raja Dwivedi @ Shiv Naresh, Baura Yadav, Rajendra Dwivedi and Ravi Jaiswal. Thereafter, again demand of money was raised and Atul was assaulted. Atul was under the spell of intoxication. He fell down and died. Thereafter, Raja Dwivedi called his tractor bearing Registration No. UP 90H 8923 which is of gray colour and on the false pretext that bricks of Genda Singh has to be loaded carried the dead body of Atul to the railway track and thereafter laid the same on the railway track. The entire occurrence regarding assault is evident from the CCTV footage. This witness has also stated that the carrying of the dead body on the tractor was witnessed by many persons. The entire occurrence can be verified from Golu @ Ankit Verma and Genda Singh. He has, thereafter, detailed the conduct of the accused persons.
11.6. Munna Gupta (maternal uncle-Mama). This witness is the second maternal uncle (Mama) of the deceased. This witness in his statement has stated that Atul came to his house at around 09:30 PM and demanded 50-100 Rs. However, as Atul was under the spell of intoxication, this witness refused to give money. Accordingly, Atul left on his E-rickshaw.
11.7. Genda Singh (owner of country liquor shop adjacent to Model Wine Shop). This witness is the owner of country liquor shop which is situate adjacent to the model wine shop of accused Raja Dwivedi. This witness has stated that he had purchased bricks for raising a wall. On 10.04.2022 at around 10:00 to 10:30 PM Raja Dwivedi, Baura Yadav and Hanua Gupta were committing theft of the said bricks. After one trolley of bricks had been carried away, this witness received information regarding above and reached the spot. He saw that Raja Dwivedi wearing a yellow Kurta was standing. Baura was driving the tractor and Hanua was sitting on the same. On the direction of the station house officer two police Constables reached the spot and restrained the aforesaid persons from carrying the bricks. At this juncture, Hanua exclaimed that "yaha kaam nahi ho pa rha hai. tab tak chaliye dusra kaam nipta lete hai." This witness further stated that after a short while he received information that the dead body of a human being which has been run over by a train is lying on the railway track. Thereafter, Hanua accompanied the police personnel, Baura took the tractor and Raja Dwivedi went on his bike.
11.8. Shubham Gupta. The statement of this witness is identical to that of Genda Singh.
11.9. Rinkoo Gupta. The deposition of this witnesss is also similar to that of Genda Singh.
11.10. Pranjul. This witness is an independent witness. By profession, this witness is a CCTV mechanic. He has stated that on 10.04.2022 at around 3:30 PM, he was called by Ravi Jaiswal @ Chacchu, who runs the canteen at the Model Wine Shop owned by Raja Dwivedi, to examine the CCTV footage as a theft has taken place. On this request, he went at the Model Wine Shop of Raja Dwivedi and saw that Atul had taken out some money from the purse of Raja Dwivedi and put it in his pocket. After some time, Raja Dwivedi, Baura, Shiv Kumar Patel and Rajendra started beating Atul. This witness has further stated that he requested aforesaid persons not to beat Atul but no heed was paid. After some time, Nana and father of Atul reached the spot and thereafter, he left the Model Wine Shop. At around 12:30 PM, Raja Dwivedi again called this witness but the mobile call was not answered, as this witness was asleep.
11.11. Shiv Pujan Chaurasia. This witness is a CCTV mechanic. He is also an independent witness. After the occurrence had occurred, this witness was called by Sonu, Sales Man on 11.04.2022 at around 01:30 AM disclosing that since theft has taken place in the Model Wine Shop therefore, he should immediately come to the Model Wine Shop. He immediately reached the Model Wine Shop. Raja Dwivedi who had concealed his face came from the back door and took this witness inside. At this juncture, there were Raja Dwivedi, Baura, Hanua and two other unknown persons. Raja Dwivedi requested this witness to delete the CCTV footage as the entire episode of assault has been recorded therein. This witness clearly denied the request of Raja Dwivedi. Thereafter, Raja Dwivedi extended threat and misbehaved with this witness but he did not interfere with the CCTV system.
11.12. Golu @ Ankit Verma. This witness is an independent eye witness. He is the driver of the pickup truck and transports liquor from Government godown to liquor shops. He has further stated that he used to transport liquor for the Model Wine Shop of Raja Dwivedi. On 10.04.2022, he reached the Model Wine Shop of Raja Dwivedi at around 4:00 PM and saw Raja Dwivedi, Baura, Rajendra Dwivedi and Shiv Kumar Patel were assaulting Atul Gupta by Danda and were spreading salt and raita on his back. This witness after delivering the liquor left the place. He discussed about the incident with one or two persons. At around 10:00 to 10:30 PM, when this witness was returning after delivering the goods and as he reached the teachers colony crossing in front of SBI, he saw Baura Yadav who was carrying one person on his back and thereafter dropped him on the tractor trolley. Two persons namely Raja Dwivedi and Hanua Gupta were standing nearby. Two other persons who were also standing could not be properly seen by him. The tractor after passing through Lai Mandi went in the direction of the railway crossing. On the next day, when he heard about the recovery of the dead body of Atul Gupta, he recollected the entire incident and inferred that his death was caused by aforementioned persons.
11.13. Umakant Upadhyay was working as Sales Man at Model Wine Shop of Raja Dwivedi. He is an eye witness of the occurrence which occurred on 10.04.2022 at around 4:00 PM at the Model Wine Shop. This witness has clearly stated as to how Atul Gupta was badly assaulted by all the four accused and how in human act of putting raita and salt in the back of Atul was committed by Ravi Jaiswal and Shiv Kumar. He has also deposed that these two persons were pushing the same in the back of Atul by a Danda. He has then described as to how father of Atul came at the wine shop. This witness has also stated that Atul was physically examined but no money was recovered from him which shows that no theft was committed by Atul from the purse of Raja Dwivedi.
11.14. Pramod Upadhyay. This witness is an independent witness and acquainted with Rajendra Dwivedi and his Manager Shiv Kumar Patel. On the phone call of Rajendra Dwivedi informing him that Atul Gupta has stolen his money. At this juncture, Shiv Kumar requested him to drop him at the Model Wine Shop. After reaching the Model Wine Shop, he dropped Shiv Kumar and also went inside the Model Wine Shop. Upon entrance, he saw that one Atul was being badly assaulted by Raja Dwivedi, Baura and Rajendra. He has then described the occurrence which took place at the Model Wine Shop and was initiated by him.
11.15. Atul Dixit, Ravi Jaiswal, Suraj Gupta, Ramdas Yadav and Saurabh Singh. They all are independent eye witness of the occurrence which occurred on 10.04.2022 at 4:30 PM at Model Wine Shop owned by accused Raja Dwivedi.
12. Apart from recording the statements of various witnesses, Investigating Officer visited the place of occurrence i.e. Model Wine Shop, owned by named accused Raja Dwivedi and also the Railway Track where the body of deceased was run over by the moving train. He, accordingly, prepared the maps regarding the places of occurrence.
13. After the arrest of the named accused namely, Raja Dwivedi and Shiv Kumar on 24.4.2022. Investigating Officer on the pointing of named accused Raja Dwivedi recovered the weapons of assault i.e. phanti and chaila (pieces of wood) and (danda) on the pointing of named accused Shiv Kumar. Investigating Officer also recovered the CCTV footage of the CCTV installed in the Model Wine Shop, and a tractor i.e. Tractor No. UP 90 H 8932 of Eicher 380 make in Gray colour along with the trolley from the house of named accused Raja Dwivedi. He also found blood stains on the trolley of the tractor. He, accordingly, prepared a memo of the same.
14. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 8.5.2022, whereby named accused Raja Dwivedi, Rajendra Dwivedi, Saurabh @ Hanua Gupta and Baura have been charge sheeted under sections 302/201/147/34 IPC.
15. All the applicants who were taken into custody on 24.4.2022 applied for bail before Court below, vide separate bail applications which were rejected vide seperate bail rejection orders dated 28.6.2022, 28.6.2022, 13.6.2022 and 29.6.2022. Thus feeling aggrieved by above, applicants, who are named and charge sheeted accused, have now approached this Court by means of aforementioned bail applications, seeking their enlargement on bail during the pendency of trial.
16. Mr. Manish Tiwary, the learned Senior Counsel for applicants submits that applicants are innocent. They have been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in aforementioned case crime number.
17. It is next contended that present case is a case of circumstantial evidence. As such, there is no eye witness of the occurrence. He has then referred to the judgement of Supreme Court in Sharad Birdhichand Sarda, Vs. State of Maharashtra, AIR 1984 Supreme Court 1622 and on basis of above, he submits that complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of the parameters laid down in paragraph 152 of the aforementioned judgement for upholding the guilt of an accused in a case based upon circumstantial evidence. According to the learned Senior Counsel for applicants, none of the parameters, as laid down in aforementioned judgement, are satisfied against applicants upto this stage.
18. According to the learned Senior Counsel, the occurrence is alleged to have occurred on 10.4.2022. However, the F.I.R. in respect of same was lodged on 14.4.2022 i.e. after four days. As such, there is delay in lodging the F.I.R. But, neither in the F.I.R. nor in the statement of first informant Jagdish Prasad Gupta any explanation regarding delay in lodging the F.I.R. has been offered. As such, the delay in lodging the F.I.R. remains unexplained. Placing reliance upon paragraph 8 of the judgement of Supreme Court in P. Rajagopal Vs. State of Tamilnadu, AIR 2019 SC 2866, learned Senior Counsel contends that since delay in lodging the F.I.R. has not been explained, the prosecution of applicant itself cannot be sustained.
19. Referring to the material on record, he contends that the death of deceased is an accidental death and not on account of any deliberate act of applicants. To buttress his submission, he has invited the attention of Court to the case diary and on basis thereof he submits that information regarding the incident was first reported by Kuldeep Chaudhary Loco Pilot of Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express to the Station Master of Atarra Railway Station, District Banda. He has then referred to the inquest report (panchayatnama) of the deceased and on basis thereof he contends that information regarding the incident was reported by Kamlesh Kumar, Point Man, Railway Station Atarra, District Banda. It was on aforesaid information that the inquest (panchayatnama) of the deceased was conducted. As per the opinion of witnesses of inquest (panch witnesses) the death of deceased was said to be accidental.
20. It is further submitted by the learned Senior Counsel that the deceased was heavily drunk and therefore, he himself was not under his control. His unguided movements as explicit from the record are like a rudderless ship. As such, it was the deceased himself who committed suicide by laying on the railway track and was thereafter run over by a moving train.
21. Learned Senior Counsel for applicants has then referred to the averments made in paragraph 12 of the affidavit filed in support of the bail application of applicant Rajendra Dwivedi to contend that the occurrence took place in between 8:30 hrs. to 20:36 hrs. and therefore, the prosecution story to the contrary that the deceased was murdered by named accused and thereafter his dead body was laid at the Railway Track, is totally belied by the medical evidence on record.
22. It is lastly contend that even otherwise applicants Shiv Kumar Patel and Rajendra Dwivedi are of clean antecedents, inasmuch as they have no criminal history to their credit except the present one. Applicant Raja Dwivedi @ Shivnaresh Dwivedi has criminal history of one case which has been duly explained in paragraph 74 of the affidavit filed in support of the bail application. Applicant Saurabh Gupta has also criminal history to his credit. However, the same has been duly explained in paragraph 40 of the affidavit filed in support of the bail application. Applicants are in jail since 24.4.2022, respectively. As such, they have undergone more than ten months of incarceration. The charge sheet having been submitted, the evidence sought to be relied upon by the prosecution against applicants stands crystallized. As such, custodial arrest of applicants is not absolutely necessary during the course of trial.
23. On the above premise, the learned senior counsel for applicants vehemently contends that applicants are liable to be enlarged on bail. In case applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
24. Per contra, the learned A.G.A. has opposed the present applications for bail. According to the learned A.G.A., allegations made in the F.I.R. when examined in the light of material on record i.e. statements of witnesses examined under section 161 Cr.P.C. , the recoveries of weapon of assault, CCTV footage, blood stains on the trolley of tractor, the F.S.L report and other material prepared and recovered by Investigating Officer during the course of investigation, it cannot be said that the allegations made in the F.I.R. are false and concocted. The prosecution of applicants, therefore, cannot be said to be false nor it can be said that there is no material to support the prosecution of applicants.
25. According to learned A.G.A. present case is a case of direct evidence and not circumstantial evidence, as submitted by learned Senior counsel for applicants. In the submission of learned A.G.A., the occurrence giving rise to present criminal proceedings is in two parts;
(i) The first part of occurrence relates to the incident regarding assault on the deceased at the Model Wine shop and thereafter his dead body being carried on Tractor No. UP 90 H 8932 Eischer 380 make and in Gray colour and laid on the Railway Track.
(ii) The second part of the incident relates to the incident caused by the moving train i.e. Train No. 15205 Down Lucknow Jabalpur Chitrakoot Express near canal i.e. Attara Khurkhand Section at Km. 1349/16, where the body of deceased was run over by the aforesaid moving train.
26. Both the incidents, as noted above, have occurred one after the other and are thus part of the same transaction. Therefore by reason of the principle of Resgata enshrined in Section 6 of the Evidence Act, they have to be conjointly evaluated. One cannot be examined in isolation of other. The first part of the incident which occurred at the Model Wine Shop stands corroborated by the statements of some of the witnesses examined under section 161 Cr.P.C. as well as the some of the recoveries made by Investigating Officer during course of investigation. In view of above, the parameters laid down by Apex Court in Sharad Birdhichand Sarda (Supra) for deciding the guilt of an accused in a case based upon circumstantial evidence are not applicable to the present case. The present case is therefore, a case of direct evidence and the complicity, if any, of the accused-applicants, in the crime in question, has to be judged in the light of the material on record which has been referred above.
27. With regard to the delay in lodging the F.I.R., the learned A.G.A. contends that there is no deliberate negligence or laches on the part of first informant in lodging the F.I.R. The incident is alleged to have occurred on 10.4.2022. Thereafter, the inquest (panchayatnama) of the body of deceased was conducted on 11.4.2022, followed by the post mortem of the body of the deceased on the same day. The dead body of the deceased was, thereafter, handed over to the first informant and was cremated. The deceased was a young boy aged about 31 years and the younger son of first informant. In such circumstances, it cannot be said that first informant, who was suffering from the trauma of having lost his young son, was deliberately negligent in lodging the F.I.R. The entire circumstances pertaining prior to the occurrence, and subsequent to the occurrence have been duly elaborated in the statement of first informant recorded under section 161 Cr.P.C. There is no material on record at this stage to doubt the same. In view of above, it cannot be conclusively held that there is any deliberate negligence or laches on the part of first informant in lodging the F.I.R.
28. With reference to the material on record, the learned A.G.A. contends that statements of witnesses examined by Investigating Officer, under section 161 Cr.P.C., the recoveries made by Investigating Officer, the adverse circumstances that have emerged against applicants clearly show that the deceased was first assaulted by named accused and put to death. at the place of occurrence i.e. the premises of Model Wine Shop owned by accused applicant Raja Dwivedi. Subsequent to above, his dead body was carried by a tractor i.e. UP 90 H 8932 of Eicher 380 make and in Gray colour and thereafter laid on the Railway Track. It is, thereafter, that the body of deceased was run over by a moving train. As such, the entire occurrence is the outcome of deliberate acts of applicants and well planned execution which clearly goes to prove the mens-rea of the applicants in committing the crime in question. As such, no indulgence be granted by this Court in favour of applicants.
29. Learned A.G.A. then submits that complicity of applicants in the crime in question stands clearly established by the CCTV footage of Model Wine Shop, wherefrom it is explicit that all the named accused assaulted the deceased repeatedly and brutally. The recovery of weapons of assault i.e. Phanti, Chaila and Danda from two of the named accused namely, Raja Dwivedi and Shiv Kumar also corroborates the CCTV footage. Apart from above, the tractor that was used in carrying the dead body of deceased from the Model Wine Shop to the Railway Track i.e. Tractor No. UP 90 H 8932 of Eicher 380 make and in Gray Colour was recovered from the house of accused Raja Dwivedi along with the trolley. Blood stains were found on the trolley of Tractor. The same were duly noted by F.S.L. team which are explicit from the F.S.L. report dated 15.4.2022. No explanation regarding same has been offered by the applicants.
30. The complicity of applicants in the crime in question also stands corroborated by the statements of witnesses whose statements have been detailed above. Up to this stage, no such material has been pointed out on behalf of learned Senior Counsel for applicants with reference to the case diary on the basis of which the credibility and reliability of the recoveries as well as the statements of above mentioned witnesses could be held to be unworthy of trust and thus unreliable.
31. On the cumulative strength of above, the learned A.G.A. submits that applicants, who are guilty of causing the death of a young boy aged about 31 years, do not deserve any indulgence by this Court.
32. Having heard the learned Senior Counsel for applicants, the learned A.G.A. for State, Mr. Akash Kishan, the learned counsel for first informant, upon perusal of material brought on record as well as the complicity of applicants, accusations made, coupled with the fact that recoveries of weapon of assault have been made on the pointing of two of the named accused namely, Raja Dwivedi and Shiv Kumar, the complicity of applicants in the crime in question being established as per the CCTV footage, no explanation having come forward from the applicants with regard to the presence of blood stains on the trolley of tractor i.e. Tractor No. UP 90 H 8932, Eicher 380 make and in Gray Colour, the recovery of trolley along with tractor from the house of accused Raaja Dwivedi, the statements of some of the witnesses examined under section 161 Cr.P.C., particularly, Umakant Upadhyay and Pranjul Soni (CCTV Mechanic) who were requested to clear the CCTV footage, the statement of Golu @ Ankit Verma who saw Baura Yadav carrying one person on his back and thereafter dropped in the tractor trolley, the conduct of the accused in referring to identify the dead body of the deceased at the railway track in the presence of the two police constables namely Pawan Kumar Pal and Ranjit Singh, the FSL report which suggests that the death of deceased is homicidal and not suicidal, but without making any comment on the merits of the case, this court does not find any good ground to enlarge the applicants on bail.
33. As a result, the bail applications fail and are liable to be rejected.
34. They are accordingly rejected.
5. Feeling aggrieved by the above order, one of the accused namely Rajendra Dwivedi preferred Special Leave to Appeal (Crl.) No. of 2023 (Diary No. 34694 of 2023) (Rajendra Dwivedi Vs. State of U.P.) before the Supreme Court.
6. During pendency of aforementioned Special Leave to Appeal (Crl.) No. of 2023 (Diary No. 34694 of 2023) (Rajendra Dwivedi Vs. State of U.P.), one of the charge sheeted accused Baura Yadav, filed his bail application before this Court, which was registered as Criminal Misc. Bail Application No. 2597 of 2023 (Baura Yadav Vs. State of U.P.). The same was allowed, vide order dated 21.09.2023. For ready reference, the order dated 21.09.2023 is extracted herein under:-
1. वर्तमान दाण्डिक प्रकीर्ण जमानत प्रार्थना पत्र आवेदक बउरा यादव की ओर से मु०अ०स० 95/2022, अन्तर्गत धारा 147, 302, 201, 34 भा०दं०वि०, थाना अतर्रा, जिला बांदा में जमानत पर मुक्त करने हेतु प्रस्तुत किया गया है।
2. आवेदक के विद्वान अधिवक्ता द्वारा पूरक शपथ-पत्र दाखिल किया गया, इसे पत्रावली पर रखा जाय।
3. आवेदक के विद्वान अधिवक्ता, परिवादी के विद्वान अधिवक्ता एवं विद्वान अपर शासकीय अधिवक्ता को सुना तथा पत्रावली का परिशीलन किया।
4. अभियोजन कथानक संक्षेप में यह है कि अभियोगी जगदीश प्रसा गुप्ता द्वारा दि० 14.04.2022 को समय 20.23 बजे, थाना अतर्रा, जिला बांदा में प्रथम सूचना रिपोर्ट इस आशय की पंजीकृत कराई गई कि उसका लड़का सुगम उर्फ अतुल घर में ही छोटी सी किराने की दुकान किये था। दि० 10.04.2023 को दोपहर करीब एक बजे रामनवमी की झाकी देखने के लिए घर से चला गया था, तभी समय 05.24 बजे उसके मोबाइल में सूचना प्राप्त हुई कि कि उसके लड़के अतुल ने तीस हजार रूपये निकाल लिये हैं, उसे यहां बहुत मारा गया है, आप आ जाओ और अतुल से भी उसकी बात करायी। उक्त फोन मॉडल शॉप, बांदा रोड अतर्रा के सेल्समैन ने किया था। थोड़ी देर में वह वहां पहुंच गया। अतुल रो रहा था। उसका लड़का पूरा शिथिल था और कह रहा था कि उसे बहुत मारा है। राजा द्विवेदी ने कहा कि वह नहीं जानता है, उसे रूपये चाहिए, नहीं तो वह इसको नहीं जाने देंगे। वादी यह कहकर चला कि आप खूब संतुष्ट हो जाओ, जब संतुष्ट हो जाना तो उसके लडके को घर भेज देना। डर के मारे पुलिस को सूचना नहीं दिया और घर चला आया। रात्रि 11.39 बजे उसने दूसरे लड़के हर्षित उर्फ गोलू के फोन से फोन किया कि उसका भाई कहां तो उसने कहा कि लोहिया पुल के पास अतुल की लाश पड़ी है। फिर गोलू ने उसे फोन किया, तब वह मौके पर गया। वहां पर राजा द्विवेदी उपस्थित था। उसे पूरा विश्वास है कि राजा द्विवेदी, राजेन्द्र द्विवेदी, मैनेजर महिन्द्रा एजेंसी अतर्रा, सौरभ उर्फ हनुआ गुप्ता व बउरा ने मिलकर उसके लड़के अतुल उर्फ सुगम की हत्या की है और घटना को परिवर्तित करने के लिए लाश को रेल पटरियों के बची में रख दिया है।
5. (i) आवेदक के विद्वान अधिवक्ता ने तर्क प्रस्तुत किया कि आवेदक को इस प्रकरण में गलत एवं फर्जी ढंग से झूठा फंसाया गया है, उसने कथित अपराध कारित नहीं किया है। प्रथम सूचना रिपोर्ट चार दिवस विलंबित है, जिसका कोई समुचित स्पष्टीकरण नहीं दिया गया है। आवेदक द्वारा अन्य सहअभियुक्तगण के साथ मिलकर मृतक अतुल की हत्या कारित नहीं की गयी है और न ही उसकी हत्या कर उसके शव को ले जाकर रेलवे ट्रैक पर डाला गया है।
(ii) आवेदक को मामले में परिस्थितिजन्य तथ्यों के आधार पर नामित किया गया है। उनका यह भी कथन है कि कथित वाहन UP 90 H 8932, सेवालाल नाम से टैक्टर के रूप में पंजीकृत है एवं कथित वाहन यूपी 90 एच 7929 दोपहिया वाहन के रूप में पंर्जीकृत है। आवेदक उपरोक्त कथित वाहनों का स्वामी नहीं है और न ही उनका ड्राइवर है।
(iii) आवेदक जन्म से मूकबधिर है एवं मॉडल शाप पर कार्य करता है, आवेदक इस दिव्यांगता के कारण ड्राइवर का कार्य नहीं कर सकता है। अभियोजन कथानक के अनुसार मृतक को अभियुक्तगण द्वारा बहुत ही विभत्सपूर्ण तरीक से मारा-पीटा गया, किंतु मृतक शव विच्छेदन आख्या के अनुसार उसके शरीर पर निम्नलिखित चार चोटें आना दर्शित है:- 1. Crush injury at neck. 2. Multiple abrasion and Contusion about (13*9) cm at Left face. 3. Lacerated wound about (3*1.5) cm at flexor aspect of wrist. 4.Left Mandible. आना दर्शित है एवं मृतक के मृत्यु का कारण "shock and haemorrage as a result of ante- mortem injury."
(iv) उनका पुनः कथन है कि घटना में प्रयुक्त आलाकत्ल की बरामदगी सहअभियुक्त राजा द्विवेदी के निशानदेही पर एक अदद फंटी चैला टाइप तथा सहअभियुक्त शिवकुमार पटेल की निशानदेही पर एक डण्डा बेट टाइप की गयी है व खून के धब्बे युक्त ट्राली मय ट्रैक्टर (ट्रैक्टर नं० UP 90 H 8932, EICHER 380) की बरामदगी अभियुक्त राजा द्विवेदी के घर से हुई है। आवेदक की निशानदेही पर किसी भी आलाकत्ल की बरामदगी नहीं हुई हैं।
(v) सी.सी.टी.वी. फुटेज के अनुसार "समय 04.19 PM पर अतुल को राजा द्विवेदी, बउरा यादव (आवेदक), राजेन्द्र आदि कैन्टीन के हॉल में लाकर बैठाते है तथा डण्डे और फन्टी चैला से मारना शुरू कर देते है एवं 05.49 PM पर सूचना पर अतुल के नाना जुगल किशोर गुप्ता मॉडल शॉप आते है उसके पश्चात 05.49 PM पर अतुल से मारपीट बन्द कर दी जाती है। आवेदक के विरूद्ध मारपीट करने की कई नियत भूमिका दर्शित नहीं की गयी है।
(vi) समय 08.54 PM पर अतुल के नाना जुगल किशोर पुनः आते है तथा अतुल से बात करके चलने के लिए कहते है। अतुल उठता है और मोटर साइकिल पर बैठ जाता है। समय 08.57 PM पर जुगुल, अतुल से घर जाने को कहता है।" इस सी.सी.टी.वी. फुटेज में आवेदक के द्वारा मृतक के साथ मारपीट किया जाना अवश्य दर्शित है, किंतु मृतक समय 08.57 PM तक जीवित था तथा वहां से जा चुका था, इसकी परिपुष्टि उसके मामा मुन्ना गुप्ता के बयान से भी हो रहा है।
(vii) मुन्ना गुप्ता द्वारा अपने बयान यान में कथन किया गया कि "घटना वाले दिन लगभग साढ़े नौ बजे रात में मैं अपने घर के दरवाजे पर बैठा था तभी अतुल हरे रंग के ई-रिक्शा से मेरे घर आया था और बोला कि मामा 100-50 रूपय दे दो मैंने उससे कहा अभी इतनी शराब पिये, अभी और शराब पीओगे मैं पैसे नहीं दूंगा फिर अतुल उसी ई-रिक्शा से लौट गया था उसके बाद कहां गया मुझे कोई जानकारी नहीं है।"
(viii) उनका यह ह भी कथन है कि सत्र परीक्षण के दौरान अभियोजन पक्ष द्वारा साक्षी गोलू उर्फ अंकित वर्मा (कथित स्वतंत्र प्रत्यक्षदर्शी साक्षी) को डिस्चार्च करने हेतु प्रार्थना प्रस्तुत किया पत्र या गया (पूरक शपथ पत्र, दिनांकित 20.09.2023 का अनुलग्नक-06), जिसमें अवर न्यायालय द्वारा "साक्षी घटनास्थल पर अपनी उपस्थिति स्वीकार नहीं कर रहा है। साथ ही घटना के किसी भी हिस्से का प्रत्यक्षदर्शी होने से भी इनकार किया गया है। छुट्टी दी गई।" उपर्युक्त तथ्यों से प्रतीत हो रहा है कि कि आवेदक द्वारा कथित अपराध कारित नहीं की गयी है। आवेदक निर्दोष है तथा वह इस प्रकरण में दि० 24.04.2022 से कारागार में निरुद्ध है। इसलिए आवेदक को जमानत पर छोड़ दिया जाय।
6. परिवादी के विद्वान अधिवक्ता एवं विद्वान अपर शासकीय अधिवक्ता ने आवेदक के जमानत का प्रबल विरोध करते हुए तर्क प्रस्तुत किया कि आवेदक द्वारा कारित अपराध संज्ञेय एवं गंभीर प्रकृति का है, इसलिए आवेदक को जमानत पर न छोड़ा जाय।
7. आवेदक के विद्वान अधिवक्ता के तकों के परिप्रेक्ष्य में पत्रावली पर उपलब्ध सारवान तथ्यों एवं परिस्थितियों का समग्र रूप से अवलोकन करने के बाद, सबूतों की प्रकृति और किसी भी ठोस विरोधात्मक सामग्री की अनुपस्थिति एवं उपलब्ध सामग्री से छेड़छाड़ की संभावना न होने के तथ्य को देखते हुए मेरी राय में आवेदक को जमानत पर मुक्त करने का उपयुक्त आधार है।
8. अतः वाद के गुण-दोष पर बिना कोई टिप्पणी किए हुए आवेदक को उपरोक्त वर्णित अपराध में संबंधित न्यायालय की संतुष्टि पर व्यक्तिगत बंध-पत्र एवं अधिक धनराशि के दो स्थानीय प्रतिभू प्रस्तुत करने पर निम्नलिखित शर्तों के साथ जमानत पर छोड़ दिया जाय।
1. आवेदक विवेचना या परीक्षण के दौरान अभियोजन साक्ष्यों के साथ छेड़छाड़ नहीं करेगा।
2. आवेदक अभियोजन साक्षियों व पीड़िता / शिकायतकर्ता को डरायेगा/धमकायेगा नहीं।
3. आवेदक न्यायालय के आदेशों का पालन करेगा, वह परीक्षण के दौरान बिना कोई अनावश्यक स्थगन लिए नियत तिथि पर न्यायालय में उपस्थित होगा तथा परीक्षण में ईमानदारी से सहयोग करेगा।
4. आवेदक जमानत पर रिहा होने के बाद जमानत की स्वतंत्रता का दुरूपयोग नही करेगा और किसी भी अपराधिक गतिविधि में लिप्त नहीं होगा न कोई अपराधिक कृत्य करेगा।
5. आवेदक प्रत्यक्ष या अप्रत्यक्ष रूप से मामले के तथ्यों से परिचित किसी भी व्यक्ति या पुलिस अधिकारियों को कोई प्रलोभन या धमकी नहीं देगा न ही उनसे कोई वायदा करेगा, जिसके कारण उन्हें न्यायालय में तथ्यों को उजागर करने से विरत रहना पड़े।
उपरोक्त शर्तों में से किसी के उल्लंघन के मामले में, परीक्षण न्यायालय आवेदक की जमानत नियमानुसार रद्द करने को स्वतंत्र है।"
7. Subsequently, vide order dated 22.09.2023 i.e. on the next day of the order dated 21.09.2023 (referred to above), the Supreme Court rejected aforementioned Special Leave to Appeal (Crl.) No. of 2023 (Diary No. 34694 of 2023) (Rajendra Dwivedi Vs. State of U.P.). The same reads as under:-
Delay condoned.
Heard learned counsel for the petitioner.
We do not find any reason to interfere with the order impugned in this petition.
The special leave petition is, accordingly, dismissed at this stage.
Pending applications(s), if any, shall stand disposed of.
8. After the hearing of present repeat applications for bail was over, counsel for the parties were granted liberty to file their written submissions. They have filed the same, which are on record.
9. Mr. Rajiv Lochan Shukla, the learned counsel for applicant-Raja Dwivedi @ Shivnaresh Dwivedi in support of the repeat application for bail of aforementioned accused has submitted as follows:-
9.1. The charge sheet/police report in terms of Section 173(2) Cr.P.C. was submitted on 08.05.2022, whereby and whereunder, named accused;-(1) Raja Dwivedi @ Shivnaresh Dwivdi (2) Rajendra Dwivedi, (3) Saurabh Gupta @ Hanua, (4) Baura Yadav and not named accused Shiv Kumar Patel have been charge sheeted under Sections 302, 201, 147, 34 IPC.
9.2. After submission of aforementioned charge sheet/police report, cognizance was taken upon same by the Jurisdictional Magistrate. However, as offence complained of is triable exclusively by the Court of Sessions, therefore, the Jurisdictional Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 579 of 2022 (State Vs. Raja Dwivedi and Others), under sections 147, 302/34, 201/34 IPC, Police Staiton-Atarra, District-Banda came to be registered and is now pending in the Court of Vth Additional Sessions Judge, Banda.
9.3. Concerned Sessions Judge framed charges against charge sheeted accused, vide framing of charge order dated 16.09.2022.
9.4. Up to this stage, the following prosecution witnesses have deposed before Court below;-
(i). PW-1 Jagdish Prasad Gupta-deceased
(ii). PW-2 Lalit Kishore
(iii). PW-3 Harshit Gupta
(iv). PW-4 Rinku Gupta @ Vipin
(v). PW-5 Saurabh Singh Rathore
(vi). PW-6 Golu @ Ankit
(vii). PW-7 Jugal Kishore Gupta
(viii). PW-8 Pranjal Soni 9.5. There are as many as 45 prosecution witnesses nominated in the charge sheet. Applicant is in jail since 24.04.2022, having undergone 2 and 1/2 years of incarceration. There is no likelihood of the trial getting concluded in near future. Only 4 prosecution witnesses of fact out of the twelve prosecution witnesses of fact nominated in the charge sheet have deposed up to this stage. As such, there is no possibility of the trial getting concluded in near future.
9.6. Charge sheeted co-accused Baura Yadav is alleged to have been seen by Golu @ Ankit Verma carrying a dead body on his back and thereafter loading the same on the tractor trolley. However, he has already been enlarged on bail by this Court, vide order dated 21.09.2023.
9.7. It is the prosecution case that blood stains were found on the tractor trolley. The incident supposedly occurred on 10.4.2022. The first information report of the same came to be registered on 14.4.2022 and the sample of blood taken from the alleged tractor trolley, which was used for taking the dead body for disposal has been collected on 21.4.2022 and even this sample of blood was found to be disintegrated and the origin of the said blood could not be determined in the Forensic Science Laboratory Report.
9.8. Golu @ Ankit Verma is alleged to be an eye witness of the occurrence to the extent that this witness had seen one of the accused Baura Yadav carrying a dead body on his back and thereafter loading the same on the tractor-trolley. However, prosecution filed an application dated 03.08.2023 praying therein that the said witness be discharged. Same was allowed by Court below, vide order dated 03.08.2023. Subsequently, aforesaid witness was summoned by Court below as a court witness but he has turned hostile. As such, no reliance can be placed upon the statement of aforesaid witness recorded under Section 161 Cr.P.C., wherein he had stated that Baura Yadav was seen carrying a dead body on his back and thereafter, he loaded the same on the tractor trolley.
9.9. Golu @ Ankit Verma has now been declared hostile, therefore, there is no connecting evidence regarding the murder of deceased at the Model Wine Shop.
9.10. As per the postmortem report of deceased, all the injuries sustained by deceased are ante-mortem injuries.
9.11. There are two parts of prosecution story, one in which initial quarrel took place due to money before 7 PM, then the deceased laid inside the model wine shop and ultimately, left the model wine shop at about 8.50 PM along with Jugul Kishor. The second part is after 8.50 PM in which initially he reached at the place of Munna Gupta and asked for money. All the witnesses of this case are explaining first part of incident. Only two witnesses are witness of second part of incident i.e. Munna Gupta and Ankit Verma @ Golu.
9.12. As per the statement of Munna Gupta deceased came at night at approx 9.30 p.m. and demanded money. He then left his place.
9.13. The concerned tractor bearing Registration No. U.Pl. 90H 8923 is not owned by the applicant Raja Dwivedi @ Shivnaresh Dwivedi. The same is owned by Sevalal and has also been released in favour of Sevalal. Sevalal has neither been made an accused nor he was examined as a witness by the Investigating Officer nor he has been nominated as a prosecution witness in the charge sheet.
9.14. The Model shop, where the first part of the occurrence is alleged to have taken place, is not owned by applicant i.e. Shiv Kumar Patel. No certificate as required under Section 65-B of Indian Evidence Act has been taken from the owner of model shop regarding CCTV footage of the building in which, the model wine shop is situate. It is further stated here that the police during investigatioin has recorded the statement of two witnesses namely Pranjal Soni and Shiv Poojan Chaurasiya who had operated and made available to the police CCTV Footage. No certificate under Section 65-B has been obtained from these witnesses at the time of taking electronic evidence. Even the original DVR that has supposedly been taken into possession by the police has not been sent for any forensic examination, as such there is nothing on record to show that the contents of the DVR have not been tampered with.
10. Mr. Shobhit Yadav, the learned counsel for applicant-Shiv Kumar Patel in support of the repeat applications for bail filed by applicant-Shiv Kumar Patel submitted as follows:-
10.1. The alleged incident took place on 10.04.2022.
10.2. The inquest of the body of deceased was conducted on 11.04.2022 and the inquest report was prepared.
10.3. On 11-04-2022, post mortem of the body of deceased was conducted at Mortury, Banda and the cause of death of deceased has been opined by the autopsy surgeon as "Shock and Haemorrhage due to ante mortem injury".
10.4. That on 14-04-2022 a first information report (hereinafter to as referred as 'FIR') was lodged with delay of four days and the applicant has not ben named in the FIR. PW-1 Jagdish Prasad Gupta in his deposition before Court below explained the delay in lodging the FIR against named accused.
10.5. First informant namely Jagdish Prasad Gupta falsely implicated the applicant in his statement recorded on 16.04.2022 during course of investigation.
10.6. During investigation eye witness namely Golu alias Ankit Verma alleged that the applicant asaulted the victim through Danda and spread salt and raita on his back.
10.7. No such injury was found on the body of the deceased during post mortem, which could have been caused by Danda.
10.8. Applicant was arrested on 24.04.2022 and since then he is langhuishing in jail.
10.9. The Investigating Officer submitted the charge sheet against all the named accused.
10.10. Applicant applied for bail before this Hon'ble Court, but the same was rejected, vide order dated 12.04.2023.
10.11. There are as many as 45 witnesses nominated in the charge sheet, but till date only 8 prosecution witnesses have been examined by the trial court.
10.12. One of the co-accused namely Baura Yadav has been granted bail by this Hon'ble Court, vide order dated 21.09.2023.
10.13. Rinku alias Vipin deposed before Court below as P.W.-4. He has clearly stated in his deposition before court below that he did not saw the applicant committing the alleged incident.
10.14. The eye witness Golu alias Ankit denied the incident and was declared hostile by Court below on 01.03.2024.
10.15. In the FSL report it has been observed that blood sample was disintegrated and thereafter the same could not be ascertained.
10.16. Applicants have no motive to commit the crime as is also clear from the facts stated above. Applicants have not been assigned any specific role.
10.17. Applicant has no criminal history to his credit prior to the present case.
10.18. Applicant islanghushing in Jail, since 2 years in respect of a crime, which has not been committed by the applicant and he has been falsely implicated with an ulterior motive.
11. Per contra, the learned A.G.A. for State/opposite party-1 and Mr. Akash Kishan, the learned counsel representing first informant have vehemently opposed these repeat applications for bail.
12. Learned A.G.A. contends that since applicants are named as well as charge sheeted accused and under incarceration, therefore, no indulgence be granted by this Court in favour of applicants.
13. It was next contended by the learned A.G.A. that against order dated 12.04.2023 passed by this Court rejecting the bail applications of 4 of the charge sheeted accused namely Raja Dwivedi @ Shivnaresh Dwivedi, Shiv Kumar Patel, Saurabh Gupta @ Hanua Gupta and Rajendra Dwivedi, Special Leave to Appeal (Crl.) No. of 2023 (Diary No. 34694 of 2023) (Rajendra Dwivedi Vs. State of U.P.) was filed before Supreme Court. However, at the time of hearing of bail application of Baura Yadav, the aforesaid fact was not brought to the notice of this Court. As such, the order dated 21.09.2023, granting bail to co-accused Baura Yadav, was passed by this Court in ignorance of above.
14. The Court, while granting bail to co-accused Baura Yadav, has not considered the order dated 12.04.2023, whereby the bail applications of other four co-accused were rejected by this Court. As such, no benefit can be derived from the order dated 21.09.2023, whereby co-accused Baura Yadav was enlarged on bail.
15. According to the learned A.G.A., aforementioned special leave to appeal was rejected by the Supreme Court, vide order dated 22.09.2023.
16. On the above premise, the learned A.G.A. contends that this Court has already rejected the bail applications of aforementioned co-accused Irrespective of the submissions urged by the respective counsel fo the applicants, no good or sufficient ground, which can be described as a cogent ground has emerged, therefore, the present repeat applications for bail are liable to be rejected.
17. Mr. Akash Kishan, the learned counsel representing first informant, apart from adopting the objections raised by the learned A.G.A. in opposition to these repeat application for bail, submits that applicants are not entitled to be enlarged on bail on the ground of parity.
17.1. Against order dated 12.04.2023, passed by this Hon'ble Court, in Criminal Misc. Bail Application no.31890 of 2022 along with 3 connected bail applications, whereby the first bail application filed by the 4 named accused (including the present applicants) was rejected, one of the co- accused namely, Rajendra Dwivedi filed Special Leave Petition (Diary no.34694 of 2023) before the Hon'ble Supreme Court, which was dismissed by vide order dated 22.09.2023(Annexure no.28).
17.2. Co-accused Baura Yadav was granted bail by the co-ordinate bench of this Hon'ble Court, while the matter of bail (by means of SLP) with regard to one of the accused namely, Rajendra Dwivedi, was engaging the attention of Supreme Court. The matter was to be taken up on 22.09.2023 and the co-accused namely, Baura Yadav obtained the bail order dated 21.09.2023, by suppressing the aforesaid fact. Moreover, the bail order dated 21.09.2023 does not give any consideration to the bail rejection order dated 12.04.2023 passed by this Hon'ble Court. As such, no parity can be drawn by the applicants from aforementioned bailed out co-accused.
17.3. The second ground raised in support of this repeat application is to the effect that the eye-witness namely Golu @ Ankit Verma has turned hostile. However, it was in the due knowledge of the Hon'ble Supreme Court that the witness namely, Golu @ Ankit Verma has been discharged by the learned trial court, who denied his presence at the time and place of the incident, which is 03.08.2023(Annexure no. 26). In spite of above, there was no interference by the Supreme Court. Therefore, technically there is absolutely no change in the situation, even after the fact that the same witness has turned hostile. In light of the above, there is nothing new on record that requires any indulgence by this Hon'ble Court in favour of applicants.
17.4. With regard to the third ground raised by the applicants i.e. the period of incarceration undergone and non-possibility of the trial getting concluded in near future, it was submitted that when the nature and gravity of offence alleged is severe, the said ground can hardly be considered for enlarging an accused on bail. Therefore, since the applicants are charged for an offence under section 147, 302, 201/34 IPC, which are very severe in nature, there is absolutely no reason for granting indulgence by this Hon'ble Court.
17.5. The submissions urged on behalf of applicants that the tractor having blood stains was recovered from the house is not owned by the applicant/accused Raja @ Shivnaresh Dwivedi and therefore, nothing adverse can be inferred against applicants, is absolutely a vague argument as it is not the ownership, which is the subject matter of trial but it is the incident and the use of the tractor which is relevant. Moreover, neither the recovery of the tractor has been specifically disputed by the applicant in the second ball application not it's presence at various occasions. The place, where the incident took place has also not been denied. The presence of Tractor is also established as per the CCTV footage and has been admitted by various witnesses in their statements recorded under section 161 Cr.P.C. including Shubham Sahu, Rinku Gupta and Genda Singh.
17.6. The fourth ground that has been taken by the applicants that the Model Shop where the incident of beating took place is not owned by the accused/applicant Raja @ Shivnaresh Dwivedi, is absolutely a vague ground as it is not the ownership that is the subject matter of trial but it is the place of incident and active participation of the applicants which is relevant.
17.7. The fifth ground that has been raised by the applicants in support of their repeat applications for bail that no certificate as required under section 65-B of the Evidence Act has been submitted by the prosecution, as such no reliance can be placed on the same. In this regard, it is submitted that aforesaid certificate can be obtained and submitted at any stage of the trial.
17.8. Apart from the aforesaid grounds, all other grounds taken by the applicants have already been taken into consideration by this Hon'ble Court, while rejecting their first bail applications. As such applicants have failed to establish any other new ground that requires consideration by this Hon'ble court.
17.9. An application under section 340 Cr.P.C. has been moved against the witness Golu @ Ankit Verma for giving false evidence in the trial court. Notice has been issued against him and the proceedings are pending consideration before learned trial court.
17.10. Upto this stage, 8 prosecution witnesses have been examined by the trial court. Seven prosecution witnesses have duly supported the prosecution case. There are various other key witnesses who are yet to be examined by the court below. Applicants being high-handed persons, if released on bail, will tamper those witnesses. Therefore, the right of the witnesses to freely depose before court below be also given consideration by this Hon'ble Court.
18. In support of aforementioned submissions, the learned counsel for first informant has relied upon the following judgments of the Supreme Court;
(i). Ram Govind Upadhyay Vs. Sudarshan Singh and Others, (2002) 3 SCC 598
(ii). Kalyan Chandra Sarkar Vs. Rajesh Ranjan and Others, (2004) 7 SCC 528,
(iii). Gobarbhai Naranbhai Singala and Others Vs. State of Gujarat, (2008) 3 SCC 775
(iv). Anil Kumar Yadav Vs. State (NCT of Delhi) and Another), (2018) 12 SCC 129.
19. Having heard the learned counsel for applicants, the learned A.G.A. for State-opposite party-1 and Mr. Akash Kishan, the learned counsel representing first informant and upon perusal of record, this Court finds that present case was initially a case of direct evidence inasmuch as the witness Ankit @ Golu Verma in his statement under Section 161 Cr.P.C. clearly stated that he had seen co-accused Baura Yadav carrying one person on his back and thereafter dropped him on the tractor-trolley. Two of the co-accused namely Raja Dwivedi and Hanua Gupta were standing nearby.
20. During course of trial, Ankit @ Golu Verma deposed before court below as P.W.-6 but has been declared hostile. As such, the connecting evidence regarding the removal of dead body from the place of occurrence has now vanished. In view of above, present case is now a case of circumstantial evidence.
21. Complicity of an accused in a case based on circumstantial evidence is to be judged in the light of parameters laid down by the Apex Court in the case of Sharad Birdhi Chandra Sharda Vs. State of Maharastra, A.I.R. 1984 SC 1622.
22. As already held by the this Court while deciding the first bail applications of present applicants that both the occurrence have to be examined and evaluated together as per the mandate of Sections 6 and 8 of the Evidence Act.
23. Having heard, the learned counsel for applicats, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant, this Court finds that the various circumstances have emerged on record. The same can be crystallized as under;-
(a) The occurrence giving rise to the present criminal proceeding occurred on 10.04.2022.
(b). The dead body of deceased was found on the railway track on the same day.
(c) The deceased was identified as Atul @ Sugam Gupta younger son of the first informant, Jagdish Prasad Gupta by Subham Sahu in the presence of co-accused.
(d) The F.I.R. in respect of aforesaid incident was lodged by first informant, Jagdish Prasad Gupta (father of the deceased) and was registered as Case Crime No. 95 of 2022 under Sections 147, 302 and 201/34 I.P.C., P.S. Attara, District-Banda. In the aforesaid F.I.R. four persons namely Raja Dwivedi, Rajendra Dwivedi, Saurabh @ Hanua Gupta and Baura Yadav have been nominated as named accused.
(e) The occurrences giving rise to present criminal proceedings are in two parts. The first part relates to the incident ,which took place at Model Wine Shop owned by accused Raja Dwivedi. The second part of the incident is at the Railway Track near canal i.e. Attara Khurkhan Section at kilometer 1349/16 in which a human being was run over by a moving train i.e. Train No. 15205 DN, Lucknow Jabbalpur Chitrakoot Express.
(f) The first part of the incident, which took place at the Modal Wine Shop stands proved by the statements of the following witnesses examined under Section 161 Cr.P.C. by the Investigating Officer:- (i). Jugal Kishore, (ii). Lalit Kumar Gupta, (iii). Pranjal, (iv). Uma Kant Upadhyay, (v). Pramod Upadhyay. (vi). Atul Dixit, (vii). Ravi Jaiswal, (viii). Suraj Gupta (ix). Ram Das Yadav and (x). Saurabh Singh.
(g) Apart from the statements of aforesaid witnesses, there is other evidence on record to prove the first part of the crime in question. The weapons of assault i.e. Fanti, Chaila and Danda used in the commission of crime were recovered upon the arrest of two of the named accused namely Raja Dwivedi and Shiv Kumar on the pointing of named accused Shiv Kumar. Apart from above, Tractor No. 90 H 8932 i.e. Eicher 380 make and in gray colour along with the trolley was recovered from the house of named accused Raja Dwivedi. The trolley had blood stains.
(h). How blood stains found on the Tractor Trolley were for chemical examination but the same could not be identified as human blood or animal blood as it was disintegrated.
(i) The CCTV Footage of the CCTV installed in the Modal Wine Shop also proves the crime in question at the Model Wine Shop.
(j) Co-accused Raja Dwivedi is not the owner of the tractor/trolley. The same is evident from the release application filed by Sevalal, who alleges himself to be the owner of tractor and the tractor was also released in his favour. The said tractor was being used for stealing the bricks belonging to Genda Yadav and upon information received by this witness, he reached the spot. At this juncture, two police constables namely (1) Pawan Kumar Pal and (2) Ranjeet Singh came on the spot. This fact is clear from the statement of Genda Yadav recorded under Section 161 Cr.P.C.
(k). Saurabh Singh Rathore, PW-5 is a chance witness. In his deposition before Court below, he has stated that a video, with regard to the first part of the incident, was prepared by his friend Ashish, which was made viral on whatsapp by him.
(l) The second part of the incident is when the dead body of the deceased was found on the railway track. The same is provded by the statements of following witnesses namely;
(i). Kamlesh Kumar, Point Man, Railway Station Attara Banda,
(ii). Kuldeep Chaudhary, Driver of Train No. 15205 DN, Lucknow Jabbalpur Chitrakoot Express.
(iii). Constables Pawan Kumar Pal and Ranjeet Singh
(iv). Hemant Singh
(m) Apart from above, there are the statements of witnesses examined under Section 161 Cr.P.C., which lead to the inference that the deceased had died at Model Wine Shop owned by co-accused Raja Dwivedi and thereafter his dead body was carried on the tractor trolley to the railway track. In this regard reference be made to the statements of Genda Singh, Rinku Gupta and Shubham Gupta.
(n) Rinku Gupta has deposed before court below as P.W.-4. This witness in his deposition has stated that his friend Shubham Sahu was with him at the model wine shop, when the rift between the accused and Genda Singh, the owner of the bricks took place. The two police contables namely Pawan Kumar Pal and Ranjeet Singh, who had arrived at the spot on the complaint of Genda Singh. They received a wireless message that a dead body is lying on the track. They accordingly proceeded to the said place and Shubham Sahu also followed them just out of curiosity, whereas Hanua, a co-accused also accompanied them. It is on account of above, that Shubham Sahu, identified the dead body of deceased and thereafter, informed Himmat Singh about the occurrence. Thereafter Himmat informed Harshit (younger brother of deceased) and in turn he informed the family members. This is how the family of deceased arrived at spot.
(o) As per the statements of the aforesaid witnesses, the following suspicious circumstances have also emerged:-
(i) The entire occurrence, which occurred at the Model Wine Shop was recorded in the CCTV Camera installed in the premises of the Model Wine Shop. To destroy this evidence, Sonu, the Sales Man at the Model Wine Shop called Shiv Poojan Chaurasia, CCTV Mechanic, on the false pretext that a theft had taken place at the Model Wine Shop. When this witness reached Model Wine Shop, co-accused Raja Dwivedi, who had concealed his face, came from the back door and took Shiv Poojan Chaurasia aside. Co-accused Baura, Hanua and two unknown persons also came. Co-accused Raja Dwivedi requested the CCTV Mechanic Shiv Poojan Chaurasia to delete the CCTV Footage as the entire occurrence of assault had been recorded therein.
(ii) The tractor-trolley attached to Tractor No. UP 90 H 8932 of Eicher 380 make in Gray colour, Blood Stains were found on the tractor-trolley. Though as per the FSL report, the said blood could not be identified as human blood or animal blood as the blood sample had disintegrated. Irrespective of above, the said circumstance assumes importance in view of the fact that though co-accused Raja Dwivedi is not the owner of the tractor but yet the same was recovered from his house and at the time of recovery, blood stains were found on the tractor-trolley. How the blood stains came on the tractor-trolley is a special circumstance within the knowledge of co-accused Raja Dwivedi. Therefore, by virtue of the provisions contained in Section 106 of the Evidence Act, the burden is upon co-accused Raja Dwivedi to explain the same, which has not yet been discharged.
(iii) The disputed tractor was initially used to steal the bricks belonging to Genda Singh, owner of country made liquor shop and situate adjacent to the Model Wine Shop, where the first part of the occurrence had taken place. Upon receiving information that his bricks were being stolen by Raja Dwivedi, Baura Yadav and Hanua Gupta, Genda Singh, the owner of the bricks, immediately reached the spot and saw Raja Dwivedi standing, Baura was driving the tractor and Hanua was sitting on the same. On the direction of Station House Officer, two police constables namely Pawan Kumar Pal and Ranjeet Singh reached on the spot and restrained aforesaid accused-persons from carrying the bricks. At this juncture, Hanua exclaimed that yah kam nahi ho pa rha hai, Tab tak chaliye dusra kaam nipta lete hai. This witness further stated that after a short while he received information that the dead body of a human being (deceased) which was run over by a moving train is lying on the railway track, which was the dead body of the deceased Atul Gupta, against whom criminality was committed in the first part of occurrence.
(iv) After the incident, which took place on the railway track, was reported at the police station, two police constables namely Pawan Kumar Pal and Ranjeet Singh reached the place of occurrence. As per the statements of the aforesaid constables, co-accused Saurabh Gupta @ Hanua accompanied the aforementioned police constables. On reaching the place of occurrence and seeing the shattered body of the deceased, co-accused Saurabh Gupta @ Hanua exclaimed has he died. However, on query raised by the two police constables to aforesaid co-accused regarding identity of the deceased, he clearly denied. Aforesaid witnesses have further stated that co-accused Raja Dwivedi and Baura Yadav also reached the place of occurrence. They were talking to each other but did not identify the deceased. This again is a suspicious circumstances and was required to be explained by the accused as to what prompted them to reach the place of occurrence and further why they refused to identify the deceased. Admittedly, this has not been done.
(v) As per the evidence on record, the first part of the occurrence took place at the Model Wine Shop owned by co-accused Raja Dwivedi at 7.00 PM and thereafter left the Model Wine Shop at 8.50 PM. As per the statement of Munna Gupta, the deceased had come to his house at night around 9.30 PM approximately and demanded money, which was refused. The deceased thereafter left his place. The occurrence at the railway track took place around 10.56 PM as per the statement of Kamlesh Kumar Kantewala, a railway employee. Therefore, the location of the deceased from 9.30 PM to 10.56 PM assumes importance. In this regard, CD Parcha No. 14 dated 07.05.2022 is relevant, wherein the following has been incorporated;-
"अवलोकन घटना स्थल माडल शाप सी०सी०टी०वी० फुटेज...... माडल शाप की सीसीटीवी फुटेज के डी०वी०आर० से अवलोकन किया गया तो कैमरा नं0 7 में पहले लगभग 2.15 PM पर राजेन्द द्विवेदी माडल शाप पर अकेले आकर शराब पी रहा था इसके पश्चात 02.34 पर राजेन्द्र बाहर निकलता है। तथा 02.37 पर पुनः राजेन्द्र द्विवेदी, अतुल गुप्ता को साथ लेकर माडल शाप की कैन्टीन में आता है तथा पीछे बैठ कर शराब पीने लगता है। दोनो बार बार एक दूसरे से गले भी मिल रहे है आपस में बाते कर रहे है। ऐसा लग रहा है कि दोनो पूर्व से परचित है। 03.09 PM पर राजेन्द्र अपना पर्स निकाल कर अतुल को दिया है अतुल ने पर्स से पैसे निकाल कर कैन्टीन के कर्मचारी सूरज को दिया सूरज कुछ पैसा वापस लेकर आता है। फिर अतुल ने पैसा तथा पर्स राजेन्द्र को देना चाहा लेकिन राजेन्द्र के कहने पर कुछ पैसा अपने शर्ट की जेब में तथा बाद में अपन, पैंट के सामने दाहिने वाली जेब में रख लिया है। दोनो बहुत अधिक नशे में है 03.17 PM पर दोनो एक साथ बाहर चले जाते है। फिर कैमरा नं0 04 में राजेन्द्र अतुल पर चोरी का आरोप लगाता है और माडल शाप के मालिक राजा द्विवेदी तथा अपने महिन्द्र ट्रैक्टर एजेन्सी के मैनेजर शिव कुमार पटेल को बुला लिया और सभी लोग सी०सी०टी०वी० फुटेज देखते है कि अतुल पैसा चोरी किया है कि नही। 04.19 PM पर अतुल को राजा द्विवेदी, बउरा यादव, राजेन्द्र आदि कैन्टीन के हाल में लाकर बैठाते है तथा डन्डे और फन्टीचैला से मारना शुरु कर देते है। राजा द्विवेदी, बउरा यादव तथा शिव कुमार पटेल बुरी तरह से अतुल गुप्ता को मारते पीटते है। तथा उसके शरीर में रायता और नमक डालते है। 05.49 PM पर सूचना पर अतुल के नाना जुगल किशोर गुप्ता माडल शाप पर आते है उसके पश्चात 05.49 PM पर अतुल से मारपीट बन्द कर दी जाती है। और अतुल माडल सेम शाप के अन्दर जहां शराब पी रहा था वहां जाकर बैठ जाता है। कैमरा नं0 06 05.52 Pit पर अतुल के पिता जगदीश गुसा माडल शप में आते है। कैमरा 08 सभी लोग अन्दर चले जाते है। वहीं अतुल कुर्सी पर बैठा है अतुल के नाना तथा तथा पिता बैठ कर पूछ ताछ करते है। तथा घर चलने के लिए कहते है। फिर वे लोग बातचीत करते है। तबा हनुवा आ जाता है। 06.16 PM पर अतुल बेहोश होकर कोने में लेट जाता है। और उसके पिता और नाना सीसीटीवी फुटेज देखते है। 06.47 PM पर अतुल उठता है पिता से बातचीत करता है। 06.49 PM पर पुनः बेहोश होकर गिरता है। 06.52 PM पर अतुल के नाना आकर एक टूटी कुर्सी से मारते है तथा समझाकर घर चलने के लिए कहते है तथा उसे लेकर बाहर निकलते है। 06.53 PM पर अतुल हाल में पुनः आकर बेहोश होकर गिर जाता है। पिता तथा नाना अतुल को ले जाना चाहते है तथा राजा द्विवेदी जाने नही देता है। 07.25 PM पर अतुल पुनः कुर्सी पर बैठ जाता है। 07.42 PM पर फिर लेट जाता है। 08.46.52 PM पर अतुल कैन्टीन से बाहर जा रहा है। कैमरा नं003 08.47 PM पर अतुल गैलरी में बैठता है राजा और रवि जायसवाल खड़े है। कैमरा नं0 06 08.49 PM अतुल माडल शाप से बाहर आया तथा बैठ गया। 08.54 PM पर अतुल के नाना जुगल किशोर पुनः आते है तथा अतुल से बात करके चलने के लिए कहते है। अतुल उठता है और मोटर साइकिल पर बैठ जाता है। 08.57 PM पर जुगुल, अतुल से घर जाने को कहता है। और अतुल उठकर दाहिनी ओर बढ़ता है। फिर जुगुल भी चला जाता है। इसके बाद अतुल सी०सी०टी०बी० में नहीं दिखता है 1 10.05 PM पर माडल शाप बन्द हो जाती है। 10.35 PM पर राजा पुनः माडल शाप में आया | 10.35 PM पर राजा का आइसर ट्रैक्टर आया है। राजा बराबर माडल शाप के सामने परेशान घूम रहा है। 10.44 PM पर सफेद स्कार्पियो आयी आगे जाकर बैक आती है। 10.45 पर स्कार्पियो आगे चली गयी। 10.46 पर ट्रैक्टर निकल गया ट्रैक्टर पर कुछ लदा हुआ दिख रहा है। 10.54 PM से राजा परेशान घूम रहा है। 10.56 पर कुछ लोग बाइक से आये है। राजा तथा बउरा आदि माडल शाप के सामने परेशान घूम रहे है ऐसा लग रहा है कि कोई घटना घट गयी है। 11.12 PM पर ट्रैक्टर पुनः आया उसमें थोड़ी ईट लोड है। राजा आदि सभी भागकर ट्रैक्टर के पास आये फिर ट्रैक्टर घूमकर वापस चला गया। 11.15 PM पर कोबरा मोबाइल के दो कान्टेबल आये है तथा हनुवा गुप्ता उन्ही के साथ बैठ कर जाता है। 11.19 PM पर राजा द्विवेदी भी माडल शाप से चला गया है। तथा रेलवे ट्रैक पर डेड बाडी देखने गया है। कैमरा 04 01.18 AM पर राजा आदि सभी 05 लोग पीछे के गेट से अन्दर घुसे है। 01.19 AM पर अन्दर आकर राजा माडल शाप पर बैठ गया तथा सी०सी०टी०वी० की डी०वी०आर० तथा हार्डडिस्क निकालने का प्रयास किया 01.20 ले 02.20 AM तक सीसीटीवी बन्द रहता है उसके बाद चालू होता है फिर ये लोग सीसीटीवी मे नही दिखते है।"
(vi) Lalit Kumar Gupta in his statement under Section 161 Cr.P.C. has stated that after the deceased returned from the place of Munna Gupta, the deceased was again caught hold by Raja Dwivedi, Baura Yadav, Saurabh Gupta @ Hanua, Shiv Kumar Patel and Rajan Dwivedi and carried him to the house of Raja Dwivedi by taking the route passing through Teachers Colony. This recital has occurred in the statement of aforementioned witness upon the disclosure made by Ankit @ Golu. Ankit @ Golu in his statement under Section 161 Cr.P.C. has clearly stated that his disclosure made by him to the witness Lalit Kumar Gupta. Unfortunately, Ankit @ Golu has been declared hostile. However, proceedings under Section 340 Cr.P.C. has been initiated against him, which is pending. Admittedly, the regular proceedings have to be decided by separate orders. Therefore, at this stage, it cannot be conclusively concluded that the deposition of PW-6 Ankit @ Golu is worthy of credit and therefore reliable.
(vii) As per the statement of aforementioned witness, the deceased was last seen in the company of accused persons, therefore, the burden is upon the accused persons themselves to explain the occurrence, which has not yet been discharged.
(viii) Genda Singh the owner of country made liquor shop in his statement under Section 161 Cr.P.C. has clearly stated that accused Raja Dwivedi, Baura Yadav and Hanua Gupta were committing theft of his bricks lying in front of the country made liquor shop in between 10.00 to 10.30 PM. When he retrained the accused persons from stealing the bricks, Hanua exclaimed to Raja Dwivedi:- bhaiya yaha kamm nahi ho pa rha hai. Tab tak chaliya dusra kaam nipta leta hai. This exclamation clearly goes to suggest that the dead body of the deceased was lying at Model Wine Shop and was carried on the trolley of the disputed tractor.
(ix) Two other witnesses namely Subham Shahu and Rinku Gupta examined under Sections 161 Cr.P.C. have given similar statements as that of Genda Singh.
(x) In view of the aforesaid circumstances, as have emerged from the record, there is grave suspicion against accused/applicants.
25. Some of the circumstances noted herein above are in the special knowledge of accused/applicants and therefore, by virtue of the provisions contained in Section 106 of the Evidence Act. Thereafter, the same are required to be explained by the accused themselves. However, the said burden has not yet been discharged.
26. The trial of the accused-applicants commenced in the year 2022. There are as many as 45 witnesses nominated in the charge sheet. On date, as many as 8 prosecution witnesses have deposed before court below. Therefore, it cannot be said that the trial is proceeding at a snails pace or there is delay in the progress of trial on account of lackadaisical approach of the prosecution in pursuing the trial. No such material has been brought on record to show that the witnesses are not appearing before Court below. Therefore, no relief can be granted to the accused/applicants on the principle that right to speedy trial is a fundamental right of the accused and the said right of accused/applicants stands infringed.
27. On the issue that co-accused Baura Yadav has already been enlarged on bail by this Court and therefore, accused/applicants are also liable to be enlarged on bail on the ground of parity, this Court finds that the first bail applications of accused-applicants were rejected by this Court by a detailed order dated 12.04.2023. Against above order, co-accused Rajendra Dwivedi filed Special Leave to Appeal (Crl.) before the Supreme Court. However, the order dated 12.04.2023 passed by this court was not noticed by the Bench while granting bail to co-accused Baura Yadav vide order dated 21.09.2023 nor the Bench has considered the fact that SLP against order dated 12.04.2023 is pending consideration before the Supreme Court. Aforementioned S.L.P. was subsequently dismissed by the Supreme Court vide order dated 22.09.2023. In view of above, this Court is not inclined to consider the bail applications of accused-applicants on the ground of parity.
28. Another argument that was vehemently canvassed before Court at the time of hearing of these bail applications that the eye witness of the occurrence namely Golu @ Ankit Verma has turned hostile and therefore now there is no evidence on record to infer that the deceased was put to death at Model Wine Shop and thereafter his dead body was loaded on the trolley of the tractor and then taken to the Railway Track to give colour to the death of deceased as a suicidal death, this Court finds that this argument also does not create a dent in the prosecution case. Aforesaid witness was discharged by the trial court on the application of the prosecution vide order dated 03.08.2023. Thereafter, an application was filed by the prosecution to summon the said witness as a court witness, which was allowed. Subsequent to above, aforementioned witness deposed before court below as P.W.-6 and his deposition was recorded on 01.03.2024. Therefore, on the date i.e. 22.09.2023 when aforementioned S. L.P. was rejected, the eye witness namely Golu @ Ankit Verma had already been discharged. In spite of above, the Apex Court refused to interfere with the order dated 12.04.2023. As such, no new circumstance has emerged. Moreover, in view of above, this Court cannot go behind the order dated 22.09.2023 passed by the Supreme Court.
29. As per the statements of three witnesses examined under Section 161 Cr.P.C. namely (1) Genda Singh (owner of country liquor shop adjacent to the Model Wine Shop), where the occurrence took place, (2) Shubham Gupta and (3) Rinku Gupta, strong suspicion can be inferred against accused.
30. Having heard Mr. Rajiv Lochan Shukla, Advocate alongwith Mr. Pratikdhar Dwivedi, the learned counsel for applicant-Raja Dwivedi @ Shivnaresh Dwivedi in Criminal Misc. Bail Application No. 46309 of 2023, Mr. Shobhit Yadav, the learned counsel for applicant-Shiv Kumar Patel in Criminal Misc. Bail Application No. 28170 of 2024, the learned A.G.A. for State-opposite party-1, Mr. Akash Kishan, the learned counsel representing first informant and upon perusal of record, evidence, acquisitions made, complicity of accused, nature and gravity of offence this Court finds that the crucial witness namely Golu @ Ankit Verma has been declared hostile. In view of above, the clinching evidence regarding the commission of alleged criminality by the named accused has now vanished. The circumstances as have emerged on record and noted herein above do create a strong suspicion against accused/applicants. However, suspicion, howsoever, strong cannot take the place of proof. The link in the chain of circumstances and other circumstances will emerged only during the course of trial. As such, on date prima-facie no good ground exist to prolong the custodial incarceration of applicants.
31. In view of above, these repeat applications for bail fail and are liable to be allowed.
32. Accordingly, the bail applications are allowed.
33. Let the applicants-Raja Dwivedi @ Shivnaresh Dwivedi and Shiv Kumar Patel, be released on bail in 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 APPLICANTS 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 APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANTS SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANTS IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS AN ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THEM IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL EXPEDITIOUSLY.
34. 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 shall be at liberty to cancel the bail, after recording the reasons for doing so, in the given case on account of default of any of the conditions mentioned above.
Order Date :- 17.10.2025 Vinay