In Chamber
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38671 of 2015 Applicant :- Ashish Kashyap Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Srivastava,Manish Tiwary,Manoj Srivastava,Rakesh Dubey Counsel for Opposite Party :- G.A.,Sangam Lal Keserwani,Vinay Saran
Hon'ble Rajesh Dayal Khare,J.
Heard learned counsel for the appellant, Sri Vinay Saran, learned counsel for the first informant and learned A.G.A. for the State.
The present bail application has been filed for enlarging the applicant on bail in Case Crime No. 151 of 2014 under Sections 364, 302, 201, 120B, 34 I.P.C., Police Station Swaroop Nagar, District Kanpur Nagar.
Perusal of the bail application shows that the matter relates to murder of one Jyoti Shyam Dasani who is said to have been killed on 27.07.2017 at about 11:30 P.M. inside her car by four assailants, who are all co-accused in this case and at whose instance or from whose possession the incriminating articles belonging to the deceased and the weapons used in the crime by them are said to have been recovered. Another co-accused, Piyush, the husband of the deceased is said to have been the main conspirators of murder of his wife and at whose behest, the crime in question has been committed.
The motive which has been shown is that the said co-accused Piyush is said to have illicit relations with another co-accused namely Manisha Makheeja, an unmarried girl, who has been granted bail by another Bench of this Court vide order dated 14.05.2015 passed in Criminal Misc. Bail Application No. 1116 of 2015, copy of which order has been produced before this Court and is taken on record.
The bail prayer of the husband Piyush Shyam Dasani has been refused by another Bench of this Court vide order dated 07.09.2017 passed in Criminal Misc. Bail Application No. 25326 of 2016 and this Court had taken note of the fact that as many as 17 witnesses have already been examined and earlier an application under Section 482 No. 25234 of 2015 was filed by the co-accused Om Prakash Shyamdasani in which, another bench of this Court vide order dated 08.07.2016 had directed the trial Court to conclude the trial as expeditiously as possible, preferably within a period of 12 months from the date of production of a certified copy of the order before it and in compliance of the aforesaid order, the trial is proceeding on almost daily basis and while rejecting the bail of Piyush Shyamdasami, this Court had directed the trial Court to conclude the trial within a period of eight months from the date of production of a certified copy of the order before the court below.
Perusal of the first information report would go to show that it was lodged at 12.30 a.m. on 28.7.2014 by co-accused Piyush, the husband of the deceased, mentioning therein that on the day of incident when he along with his wife were going back to their house in their car after taking dinner in a restaurant, some 7 or 8 miscreants on four motorcycles intercepted them and after dragging him out of the car, he was physically assaulted and thereafter, his wife, who was sitting in the car was abducted along with the car by the miscreants, who sped away after committing the incident. Later on, the dead body of the deceased was found in the abandoned car. The investigation of the case was taken up and as per the prosecution it was found that the version given by the husband was only a ruse and an attempt to mislead the authorities and he himself was behind the commission of murder.
Learned counsel for the applicant has contended that the applicant in the present case was not named in the first information report and he has been roped by way of confessional statement of co-accused. Reference in this regard has been drawn to page 65 of the affidavit accompanying the bail application, which is the second statement of husband Piyush Shyam Dasani and it has been contended that the name of the applicant came into light in the statement of co-accused Awadhesh, alleged driver of co- accused Manisha Makheeja. Reference has again been drawn to page 69 of the affidavit accompanying the bail application, which is again statement of husband, wherein he has stated that it was Awadhesh, who had named the applicant and others, who had planned the incident. This is only allegation against the applicant that he, after committing the incident, helped accused persons is escaping and even the motorcycle, which is said to have been recovered from the applicant, has not been connected with the alleged offence, for which applicant has been falsely implicated. It is further contended that there is nothing on record to show that there was any acquaintance of the applicant or any conversation with other co- accused, who are assailants, thus, it is argued that apart from the confessional statement of co-accused, there is nothing on record to connect the applicant with the complicity of the alleged offence. The circumstances which, according to the learned counsel for the applicant, led to the false implication of the accused, have also been touched upon at length. It is next contended that the applicant is ready to cooperate with the process of law and shall be available before the court whenever required. It is further contended that the allegation is that the applicant is one of person, who was involved in the commission of alleged offence but there is no material on record or any evidence on record to show that he was involved in the commission of alleged offence.
Learned counsel for the applicant has next contended that the role assigned to the applicant is clearly distinguishable from that of the co-accused Piysh, the husband of deceased, who was the main conspirator of the commission of alleged offence. Further the case of the applicant in the present case is on a far better footing than the case of co-accused Manisha Makheeja, who has already been granted bail by another Bench of this Court.
Learned counsel for the complainant Sri Vinay Saran has contended that although main conspirator of the alleged offence is the husband Piyush, who had given contract of murder of his wife to the co-accused persons who are professional killers and applicant is a member of the said group. It is further contended that complicity of the applicant in the present case is clearly established from the google map, which has been prepared by the Investigating Officer with the help of CBI Lab, copy of which has been appended at page 86 as annexure CA-2 to the counter affidavit dated 26.5.2018, which has been filed today and is taken on record. It is also contended that bare perusal of the said map is indicative of presence of various accused persons at various places and the green dots shows the presence of present applicant. Reference has also been drawn to annexure- CA-2 again at page 25 of the said short counter affidavit dated 26.5.2018, which shows the various mobile towers and calls, which have been made and to whom it is made. It is, thus, argued that both these documents would go to show that there is evidence of the involvement of the applicant in the commission of alleged crime.
Learned counsel for the complainant has also referred paragraph no. 3 of annexure-1 to the supplementary affidavit dated 9.12.2015, which is on record and has argued that the said annexure is google map, which is part of case diary, which shows all the contacts of the accused including the applicant near restaurant as well as at the place, where alleged crime is said to have been committed. It is, thus, argued that there is sufficient evidence on record to establish the complicity of the applicant in the commission of alleged offence. It is further contended that in the modern time electric devices are being frequently used for committing various offence and labs like forensic lab, CBI lab and other specialized lab are being utilized for solving out the cases and such evidence are admissible as per the amended provisions of Evidence Act. In support of his contention learned counsel for the complainant has relied upon judgment of Hon'ble Apex Court in the matter of Firozuddin Basheeruddin Vs. State of Kerala, reported in 2001 LawSuit (SC) 1087 and has drawn attention of this Court in paragraphs no. 23 and 24 of the said judgment.
It has further been argued by the learned counsel for the complainant that in the matter of Central Bureau of Investigation Vs. V. Vijay Sai Reddy, reported in (2013) 7 SCC 452 the Hon'ble Apex Court has taken into consideration Section 437, Cr.P.C. while granting bail and learned counsel has contended that perusal of the said judgment would go to show that merely on the ground that present applicant has been named as one of the accused in the confessional statement, he is entitled for grant of bail. It is lastly contended by the learned counsel for the complainant that out of 30 witnesses, 22 witnesses have already been examined and trial is proceedings almost on day to day basis and the same is likely to be concluded in near future. This Court has already directed for expeditious conclusion of trial by the two orders referred to above, thus, it is contended that, if the applicant is enlarged on bail at this stage, he may not only hamper with the trial but also influence the witnesses, therefore, it is prayed that present bail application may be rejected.
Learned counsel for the applicant has referred to paragraph no. 6 of annexure-CA3 to the short counter affidavit dated 26.5.2018 filed by the learned counsel for the informant at page 118, wherein the Investigating Officer has stated that he had prepared google map himself, thus, it is argued that google map, which has been prepared by the Investigating Officer has no sanctity in law and cannot be relied upon.
After hearing the submissions made by the rival parties and without considering the merits of the case, this Court is of the opinion that the learned counsel for the applicant could not make out any good ground for enlarging the applicant on bail at this stage.
Accordingly, prayer for bail is rejected. However, it is directed that the trial of the present case be concluded strictly in compliance of the earlier orders of this Court dated 07.09.2017 passed in criminal misc. bail application no. 25326 of 2016 and 08.07.2016 passed in application under Section 482, Cr.P.C. no. 25234 of 2015 under intimation to this Court.
The present bail application is rejected.
Order Date :- 31.5.2018 Ashish