Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36826 of 2017 Applicant :- Shera @ Sahil Opposite Party :- State Of U.P.
Counsel for Applicant :- Pankaj Srivastava,Arvind Kumar,Neeraj Srivastava Counsel for Opposite Party :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Arvind Kumar Srivastava, learned counsel for the applicant and Sri Kamal Singh Yadav, learned AGA along with Sri Kulvir Singh appearing for the State.
This is an application for bail on behalf of Shera @ Sahil in Case Crime No. 397 of 2016, under Sections 364A, 302, 201, 120B/34 IPC, P.S. Naubasta, District Kanpur Nagar.
In order to find out whether the articles recovered belonged to the deceased child the same were sent for analysis to the FSL whose report was summoned by the court through a direction issued on 23.02.2018; that report has been enclosed with the counter affidavit of the State. The report of the FSL shows that the recovered articles indicated the presence of petroleum product. The Court has also been taken through the contents of the case diary by the learned AGA that was produced at the hearing which, amongst others, carries details about the searching investigation to trace mobile number 7347864200 to the accused and the manner in which it was acquired all of which are recorded in CD No.2 dated 09.06.2016.
The submission of the learned counsel for the applicant is that he is not named in the first information report and has been implicated on the ground of suspicion by the first informant who had expressed it on the basis of his daughter's information that she had seen the applicant in his car with his friends near the coaching institute where the child went for tuition but no credible evidence has been collected by the Investigating Officer regarding the presence of the applicant and his alleged associates. It is further argued that only evidence against the applicant is a confessional statement and a recovery shown by the police of some articles belonging to the child at the applicant's pointing out but the same is of no consequence as the same was made nine days after the incident without any public witness being associated; that a second recovery which has been shown by the police against the applicant on 30.06.2016, 22 days after the incident is based on further articles planted upon him and the co-accused, especially after the arrest of co-accused Atiq Khan, and, that is why a forensic report/opinion is not sufficient to connect the applicants to the present crime. It has been further argued that in relation to the most formidable evidence of offending mobile no. 7347864200 wherefrom the ransom call was made to the father of the deceased child, the said mobile number is not registered in the name of any of the accused, including the applicant but stands in the name of one Vinod Kumar s/o Vijay Ram, r/o 33 Heeraman, P.S. Shivli, District Kanpur Dehat which the police mala fide connected to the applicant and his co-accused; that there is no criminal history of the applicant except the present false case; that it is a case that rests on circumstantial evidence where the chain of circumstances is far from complete; and, that the case is one of no evidence against the applicant.
A detailed counter affidavit has been filed on behalf of the complainant/first informant enclosing therewith a copy of the charge sheet and carrying details of the investigation into the crime, in particular, the close tracing of the mobile phone through which the parents of the deceased child were called to pay ransom. The said mobile number is 7347864200 which the applicant has disowned. The police has done a tracking of the mobile phone number together with the IMEI number of the handset where the same has been used. They have also done investigation to find out as to where and from whom the offending mobile SIM Card bearing mobile no. 7347864200 was purchased and have found during investigation that said mobile number is registered in the name of one Vinod Kumar s/o Vijay Ram, r/o 33 Heeraman, P.S. Shivli, District Kanpur Dehat. On interrogation, Vinod Kumar last mentioned has candidly said that he never purchased the said SIM card.Thereafter, the Investigating Officer went after the vendor of the SIM card who is one Rohit Singh @ Banti s/o Govardhan Singh, the Proprietor of Om Mobile Shop, Mati Road, Akberpur, Kanpur Dehat. During investigation Rohit Singh @ Banti informed that Prakash Verma and Atiq Khan, who are co-accused in the present case had purchased a mobile handset of LAVA company and three SIM cards from him, one of which was SIM No. 7347864200. The vendor of the SIM card also told the police that one Servesh Kumar @ Anuj had activated the SIM card and provided the same to him for extra money charged for an activated SIM card that Rohit Singh sold to co-accused Prakash Verma and Atiq Khan. Thereafter, the Investigating Officer recorded the statement of Servesh Kumar @ Anuj, under Section 161 Cr.P.C. who informed that he did provide an activated SIM card bearing number 7347864200 to Rohit Singh @ Banti.
With so much of well knit and incriminating evidence about the mobile number from which the father of the deceased child got a ransom call, the applicant along with other co-accused were arrested and during interrogation Prakash Verma confessed to having throttled the child Ashutosh along with Vishal Valmiki and during this dastardly deed Shera (the applicant) and Atiq had pinned down the child. The submission is that ignoring the evidence of confession there is the recovery of a plastic bottle used for carrying petrol by which body of the deceased-child was burnt at the pointing out of the applicant in the presence of two independent witnesses, to wit, Rahul Gautam and Dayanand Yadav. It is also pointed out that the evidence of last seen has come from one Nirmal Kumar who has testified to have seen Prakash Chandra who is a brother-in-law to his sister moving in his car with a man sitting by his side and on the rear seat men who had between them a child sitting; and they had covered the child in their arms. Though the child could not be recognized but it is said that putting the pieces of evidence together the child was unmistakably the victim.
Learned counsel for the applicant in a limited rejoinder had said that the confessional evidence is of no worth and the evidence of last seen is not firm and the recovery of different articles belonging to the child has been said to be false and foisted.
Considering the overall facts and circumstances of the case, the nature of allegation, the fact that the crime is a very heinous one involving kidnapping for ransom of a child followed by his brutal murder, the fact that if all other evidence be ignored, the mobile number/SIM number 7347864200 from which the father of the child received a ransom call that is mentioned in the FIR was sold by a vendor to co-accused Rakesh Chandra and Atiq Khan who have clearly named the applicant as one of his accomplices in the crime, the recovery of a plastic bottle at the instance of the applicant in the presence of two independent witnesses at the pointing out of the applicant from a place not frequented by many, in the considered opinion of this Court are circumstances that do not entitle the applicant to bail at this stage.
The bail application stands rejected at this stage.
However, looking to the period of detention of the applicant, it is directed that the trial pending before the concerned court below be concluded expeditiously, as early as possible, preferably within six months from the date of receipt of a 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 the 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.
The witnesses, if they do not appear on the first summons, shall have their attendance secured through immediate issue of coercive processes, and, once a witness appears he/she will not be discharged till his/her evidence is concluded.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 29.3.2018 Imroz