Court No. - 54
Case :- CRIMINAL APPEAL No. - 3873 of 2017 Appellant :- Kuldeep Yadav Respondent :- State Of U.P. & 2 Others Counsel for Appellant :- Anil Kumar Srivastava,Anil Kumar Verma Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J.
1. In view of the office report dated 07.09.2017, service upon the opposite party no.3 is held sufficient. No one has put in appearance on behalf of the opposite party no.3. So far as the opposite party no.2 is concerned, he is a formal party; he is neither the victim or a dependent of the victim. As such, he is not required to be served.
2. Heard Sri Anil Kumar Verma, learned counsel for the appellant and Sri S.A.S. Abidi, learned A.G.A. appearing on behalf of the State.
3. This is an appeal under Section 14A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘Act’) from the order of the Additional District and Sessions Judge, Court No.3, Kaushambi, dated 07.07.2017, in bail application no.293 of 2017, relating to case crime no.888 of 2016, under Sections 302, 201 IPC and Section 3(2)5 of the Act, rejecting the aforesaid bail application preferred by the appellant.
4. The prosecution story in short is that one Ajay Kumar son of Ram Lal, a native of Village Rampur Dhamawa, Police Station Saini, District Kaushambi, a Chaukidar of the Village, lodged the First Information Report giving rise to the present crime with allegations that on 09.12.2016 at 8:30 in the morning he was proceeding to the open to answer the call of nature and as he passed by the fields of one Munna Raidas, he found in those fields the dead body of a man of aged about 25 – 30 years. Upon examining the body closely, he found that there was blood oozing from his neck; it appears to be on account of injury caused by a sharp edged weapon, that had been employed to murder him. With the said short facts, First Information Report was lodged by Ajay Kumar with the police, on the basis of which investigation in the present case commenced.
5. It was argued before the court below that the appellant is innocent; he has nothing to do with the deceased, who was lateron identified to be one Harish Chandra. It was said that the father of the deceased had taken his name, connecting him on the basis of circumstances under ill-advice of the natives of his village. It was urged that the appellant was a resident of another village that is situate 7 kilometers away from the village of the deceased, where he was found dead. It was impressed upon the court below that all these charges were foisted upon the appellant as it was a clueless murder.
6. On the other hand, the prosecution contended before the court below that the deceased was done to death by a sharp edged weapon and in order to destroy evidence, the dead body was thrown in the fields of Munna Raidas. It was urged on behalf of the prosecution that his name had come to light during investigation. It was argued that after collecting evidence, the appellant has been charge sheeted, and, further that the bail application on behalf of the accused had already been rejected. The learned court below reasoned that a perusal of Parcha no.3 in C.D. showed that Ganesh Pasi son of Ram Bharose Pasi, a native of Village Krishna Doli, Police Station Charawa, had given an application to the Station House Officer, dated 08.12.2016 that his son Harish Chandra had accompanied Kamlesh and Kuldeep Yadav son of Man Singh Yadav, natives of Village Bari Mouli, Police Station Charawa, Kaushambi, who had taken his son along to their home and that he had not returned. On the second day, Ganesh Pasi had gone over to the house of Kamlesh and Kuldeep to enquire about the whereabouts of his son asking them that his son had accompanied the two from home. On 14.12.2016, he went to lodge the first information. His report was lodged and there the Head Constable told him that an unidentified dead body had been found on 09.12.2016 and that he may go and identify it. Thereupon, the father of the deceased went to Police Station Saini and on being shown the photograph of the dead body, he identified the deceased to be his son, Harish Chandra. He learned there that his son has been done to death and his body was found in Village Rampur Dhamawa within the local jurisdiction of Police Station Saini. It is noteworthy that Kamlesh and Kuldeep would frequent place of Harish Chandra and there were questionable relations between the wife of the deceased Harish Chandra and Kamlesh. It was also said by the father of the deceased that on the said issue, there would be a fight with his wife. The learned court below has recorded all these facts. The father of the deceased disclosed a suspicion and a strong one at that, that his son had been done to death by Kamlesh along with Kuldeep, who had thrown away the dead body in the local limits of Police Station Saini. The statement of the father of the deceased was recorded under Section 161 Cr.P.C., where he supported his earlier version made in his application dated 08.12.2016.
7. The learned court below has looked into Parcha no.13 and examined the statement u/s 161 Cr.P.C., said to be made by Kamlesh, where he admitted that he had close relations with the wife of the deceased Harish Chandra, to wit, Sunita alias Goraki. Harish Chandra would mind those close relations; he would object Sunita talking to Kamlesh. One day Kamlesh and Kuldeep Yadav went over to Harish Chandra's home. There they drank to their hearts fill and also made Harish Chandra partake of liquor, until he was in an inebriated condition. Kamlesh held Sunita by her hand. That made the deceased Harish Chandra abuse Kamlesh in filthy words. Kuldeep asked the deceased Harish Chandra not to abuse him and said that his life would not be spared. On 08.12.2016, Kuldeep went over to deceased Harish Chandra's home and invited him to go to Jugawa and there took him alone. He stated that two of them went at 1 – 12 (in the morning presumably). It was stated by Kuldeep that they partook of liquor whiled away sometime and changing different modes of transport, they reached the area falling under Police Station Saini, and, there selecting a desolate spot in a field, they again had liquor. When Harish Chandra was badly intoxicated, Kuldeep Yadav caught hold of him and threw him to the ground and abusing him in caste suggestive and filthy words, took out a knife and slit his throat. Kamlesh stated that he pinned his feet out of fear. The learned court below concluded that the statement of Kamlesh and father of the deceased, thus, support the prosecution version.
8. In the Panchayatnama, two injuries were noticed on the dead body of the deceased. These are – (1) an injury across the neck of the deceased with blood oozing, and (2) a cut injury at the base of the private part. A perusal of the autopsy report shows the cause of death to be hypoglycemic shock and haemorrhage due to ante- mortem incised wound. The cause of the ante-mortem injury is said to be a sharp edged weapon and two injuries were noted in the said report that read as follows:-
(1) Massive incised wound at neck anteriorly approx 10 x 5 x 3 cm.
(2) Incised wound anterior to penis 2 x 2 cm.
9. The learned court below took into consideration all these injuries in the inquest and the autopsy. Thereafter, the court below considered the circumstances to the effect that the co-accused Kamlesh is said to be involved with the wife of the deceased Harish Chandra; the fact of the deceased protesting that relationship and the episode of exchange of abuses between the accused and the deceased and finally the accused taking the deceased to a desolate spot and murdering him as suggested by the prosecution. The court opined that at the stage of bail, minute appreciation of evidence is not required to be done. The Panchayatnama and the autopsy report show that the deceased met his end due to the recorded injuries and the offence is heinous in nature, which does not entitle the appellant to bail.
10. Learned counsel for the appellant has urged that it is a case that is built entirely on circumstantial evidence. There is no eye- witness account. The circumstances appearing against the appellant are those of last seen and an extrajudicial confession, which too has been made by co-accused Kamlesh Yadav. There is absolutely no direct evidence of his involvement. It has been urged that the entire story of the questionable relationship between the wife of the deceased and Kamlesh Yadav, is no more than a figment of imagination. It has further been argued that even if the wife of the deceased, Sunita had illicit relationship with co-accused Kamlesh Yadav, that does not afford any strong motive to the appellant Kuldeep to do her husband death. Rather, it affords a motive to the father of the deceased to falsely implicate the appellant in the murder of his son on account of the fact that the appellant is a friend of Kamlesh Yadav, whose involvement with his daughter-in-law in a questionable relationship, he has suspected. It is emphasized that during investigation, no credible evidence has been collected by the Investigating Officer regarding appellant's involvement in the crime.
1. Learned A.G.A. on the other hand has relied upon the statement of Smt. Pushpa Devi (wife of the younger brother of the deceased). Her evidence is relevant and speak about the involvement of Sunita, the wife of the deceased with Kamlesh Yadav and about the relationship between the two. It is not at all about any circumstance directly related to the crime. The statement of Sunita, and further statement of the father of the deceased do not reveal any such red pointer which may prima facie connect the appellant to the crime. There is evidence of the son of the deceased also, who has said also that Kamlesh Yadav and the appellant fought his father, threatened him, abused him, and, they took him away, which is very different from the version of the first informant, the father of the deceased.
12. The learned A.G.A. has also invited the attention of the Court to the call detail records, which show that Kamlesh Yadav, was at the same location, that would connect him to the deceased, but the call detail records mentioned in Parcha CD no.7, bear no reference to the appellant. They are not his call detail record.
13. Considering the overall circumstances, which do not go much beyond the evidence of last seen and general suspicion about the involvement of the appellant for a motive of siding with his friend, co- accused Kamlesh Yadav, that is not strong enough prima facie to serve as a clinching link in a chain of circumstances, and, in fact, the chain of circumstances is far from complete as far as the appellant is concerned. In the opinion of the Court, therefore, the court below was not right in denying bail pending trial to the appellant.
14. The appeal is, therefore, allowed.
15. The impugned order dated 07.07.2017 passed by the learned Additional District and Sessions Judge, Court No.3, Kaushambi, dated 07.07.2017, in bail application no.293 of 2017, relating to case crime no.888 of 2016, under Sections 302, 201 IPC and Section 3(2)5 of the Act, Police Station Saini, District Kaushambi stands set aside and reversed.
16. Let the appellant, Kuldeep Yadav, involved in case crime no.888 of 2016, under Sections 302, 201 IPC and Section 3(2)5 of the Act, Police Station Saini, District Kaushambi, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the learned trial court.
17. It is directed that the court below shall proceed with and dispose of the trial expeditiously, if possible, within six months next from the date of receipt of certified copy of this order in accordance with Section 309 Cr.P.C. and in view of principle laid down in the recent judgment of Hon'ble Supreme Court in the case of Vinod Kumar V. State of Punjab reported in 2015 (3) SCC 220, if there is no legal impediment.
18. It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence positively.
19. Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 29.3.2018 S. Thakur/ Anoop