Court No. - 1 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19893 of 2016 Applicant :- Uday Swarup Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Vinay Saran,Pradeep Kumar Mishra,Shri Chetan Sharma Counsel for Opposite Party :- G.A.,Amit Misra,Gyan Prakash,Prashant Vyas,Santosh Tripathi
Hon'ble Ramesh Sinha,J. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Vinay Saran, learned counsel for the applicant, Sri Gyan Prakash, learned counsel for the CBI, Sri Santosh Tripathi, learned counsel for the complainant and Vikash Sahai, learned AGA for the State.
2. This bail application has been moved by the applicant for release on bail in Case Crime No. 267 of 2013, Sessions Trial No. 538 of 2013, under Sections 376, 201 IPC, P.S. New Agra, District Agra.
3. The facts in brief are as follows:-
4. The police control room received information from an Advocate, Sri Ritesh Tyagi that an abandoned red Maruti Alto Car was parked near gate of Radhabagh/Hazuribagh, on the Khelgaon Road, Agra and upon the said information Sri C.P. Hasmuddin and C.P. Sunil Kumar of Chauki Amar Vihar, Police Station-New Agra brought the car to the police station.
5. Thereafter, the father of the deceased Richpal Sharma received a call from P.S. New Agra inquiring about the car, upon which he called his daughter Neha Sharma but her mobile phone was switched of and thereafter, he called his wife Smt. Santosh Sharma who after receiving a call from her husband, reached the said police station along with her son Samarth and relative Ritu Saini and identified the car.
6. Thereafter Smt. Ritu Saini called the Professor Amla Chopra, who was the guide of Neha Sharma and inquired whereabouts of Neha Sharma , upon which the said Professor Amla Chopra along with her husband immediately rushed to the Lab and found it locked. While returning, she met fiancee of Neha's sister Kirti and all of them again went to check the Lab where they discovered body of Neha Sharma lying on the floor. Her mother Smt. Santosh, brother Samarth and Smt. Ritu Saini also reached on the spot.
7. An information with regard to the occurrence was communicated to the Police Station-New Agra which was registered on 15.3.2013 in G.D. No. 76 at about 24-40 hours after the incident, upon which the police team also reached the spot.
8. In the meantime, the father of the deceased reached Agra and lodged FIR against unknown persons at Police Station-New Agra, registered as case as Case Crime No. 267 of 2013, under Section 302 IPC through G.D. No. 81 dated 15.3.2013 at 23:30PM, at Police Station New Agra.
9. Learned counsel for the applicant submitted that the applicant is not named in the FIR and later on he was falsely roped in this case only on the ground of suspicion. The police arrested the applicant on 22.4.20.2013 i.e. about 37 days after the incident, in haste and without sufficient evidence and, thereafter, the bail application of the applicant was rejected by Lower Court on 15.7.2013, under Sections 302, 376/511 IPC. The charge-sheet was submitted by local police on 20 July, 2013 in the Court of C.J.M., Agra who took cognizance on the same and thereafter the State Government transferred the investigation to C.B.I. vide notification no. 1672/6-Pu-12-13-2(34)D/13 dated 23.7.2013 and in pursuance of the said notification the CBI registered an FIR bearing RC No.7(S) 2013/CBI/SCIII/ND at police SCIII Delhi Dated 27.08.2013. And, thereafter, CBI moved an application on 29.8.2013 before the Court of District Judge, Agra praying that proceedings in the said case be kept in abeyance and that the materials, statements documents, and reports be handed-over to CBI and that the case be transferred to the Court of Special Judicial Magistrate, CBI, Ghaziabad. In the mean time, on 27.7.2013, the applicant got his first bail application noticed before this Court being Criminal Misc. bail Application No. 23527 of 2013.
10. The circumstances against the applicant were explained as follows:-
11. That the applicant was one of the frequent/regular visitors of the lab where the murder had taken place was meaningless, as admittedly, there were several visitors of the said lab such as, students, staff etc. and the applicant being one of the student of BSc Part III was a natural visitor of the said place. He also brought on record the statement of professor Amla Chopra under Section 161 Cr.P.C. which indicated that no complaint was ever made by the deceased against the applicant.
12. That possession of one of the keys of the Lab by the applicant was not a clinching circumstance as according to the prosecution, there were three keys of the said lock of the lab; one being with the deceased and the other with the applicant and the third one with the Professor Amla Chopra. It had also come in the statement of Smt. Santosh Shama, mother of the deceased that the door of the lab had no lock from inside and the same could be locked from outside only. It was important to note that admittedly, the deceased Neha Sharma went inside the Lab by opening the outer lock and since, there was no provision to lock the door from inside, the door was already open at the time of the alleged incident, and, therefore, other keys being in possession of the applicant would not make any difference as there was no need to open the lock to enter the Lab. Moreover, absence of the recovery of key possessed by the deceased from the spot or from anywhere else would suggest that the actual key of the Neha Sharma was used by the actual culprit to lock the door from outside after the murder. The criticism of the conduct of the applicant towards the deceased was not of such a nature from which it could be inferred that there was any bad intention of the applicant towards her. The statement of the mother and the professor Amla Chopra go to show that the deceased had never made any complaint against the applicant so that he could harm her. The deceased was a junior student of BSc. The investigating officer interrogated one Ishan Sharma who could have motive for such crime but for reasons best known to investigation officer no proper investigation was made. Even, the sister of the deceased never told any such thing that could indicate that such an incident might occur.
13. The Forensic Report for FSL and the hair specimen have shown similarity in the hair samples of serial no.1 and hair samples of serial no.12, but the report does not conclusively indicate that the alleged hair samples of serial no.1 and serial no.12 were of the same specimen and similar in appearance as no DNA test was performed. The hair samples mentioned at serial no. 14, which had mark of struggle on it did not match the applicant's. The applicant being one of the visitors of the Lab, the presence of his scalp hair on the floor would be very natural and and hence, of no consequence. Moreover, implant and manipulation of sampling could not be ruled out as hair sample of the applicant was not taken in presence of a Magistrate. The alleged hair samples were collected from the spot on 4th visit during the course of investigation.
14. The first spot inspection was made on 16.3.2013 by team of higher Police Authorities including the DIG Range, Agra, S.S.P, S.P. City, S.P. Crime, Addl. S.P. and Addl. S.P. Unit team with C.O. with Scientist Geeta Rani with her field unit team which inspected the spot, but no hair was found in the spot inspection.
15. On the second occasion, the investigating officer went on 16.3.2013 but did not find any hair from the spot. On the third occasion on 16.3.2013, the investigating officer inspected the spot but did not find any hair sample. However, at the end of parcha 1(A) which was recorded, the in-charge of the field unit team had taken fingerprint samples only. Therefore, it is apparent that the investigating officer tampered with the records and prepared a fake recovery memo dated 16.3.2013 showing the recovery of hair, chloroform bottle, blood etc. from the spot.
16. Lastly, on the fourth visit, for the first time on 17.3.2013 the investigating officer along with field unit team with in-charge Smt. Geeta Rani visited the spot and surprisingly, collected hair samples from the spot. It is also mentioned that on 20.3.2013 the field unit team collected samples of 218 peoples including the present applicant, staff of the college but for the reasons best known to the prosecution their fate remains unknown and the official report speaks about 11 people only, therefore, the credibility of official report is also highly doubtful.
17. The case is totally resting on circumstantial evidence and the bail application was moved before the trial Court on 6.6.2013 with categorical case that there was no eye witness account and that for the first time after about four months (190 days) during the pendency of the bail application, the investigating officer, introduced name of one Rahit Yadav as an eye witness of the incident, which clearly reveals falsehood of the prosecution case.
18. After several dates, this Court after hearing both the sides including the State and the CBI at great length, granted bail to the applicant vide order dated 10.2.2014. Thereafter, the investigation by CBI went on and the applicant fully cooperated during the lengthy and tedious process and simultaneously, pursued the prestigious Young Fellowship Programme at Ashoka University Sonipat. However, he attended the investigation proceedings on each and every date whenever called upon, with or without any notice. He never tampered with the evidence; his passport was also seized by investigating officer on 19.7.2014; the applicant has been a meritorious student. In his BSc. course he achieved a cumulative grade point average of 8.87 out of 10 and passed out with distinction and stood second in his class, in spite of the fact that he appeared in the examination while he remained lodged in jail and missed-out an important exam. After being granted bail by the High Court he joined prestigious Young India Fellowship Programme and achieved a cumulative grade point average of 3.42 out of 4, being placed in the top ten of the class and is studying for Masters in the Laboratory Sciences. It is further, mentioned that on 11.9.2014, the CBI surreptitiously, moved a Modification Application No. 304360 of 2014 dated 4.9.2014 before the High Court for modification of the bail order and prayed for imposition of conditions against the applicant which is pending till date. Further, it is mentioned that during the investigation the CBI recorded various statements and several expert reports were also prepared in order to falsely frame the applicant for ulterior reasons and finally CBI prepared its supplementary report under Section 173(8) Cr.P.C on 31.12.2015 under Sections 302, 376, 201 IPC and submitted the same before the trial Court at Agra on 22.1.2016. The CBI rejected the latter part of the story developed by the police of introducing one Rohit Yadav as an eye witness of the actual incident of murder.
19. The only one new allegation which has been added by the CBI is the report dated 9.7.2014 of Centre for DNA Fingerprinting and Diagnostic (CDFD) Hyderabad which purportedly states that the biological semen present on the vaginal slides of the deceased was from the applicant.
20. It is further, mentioned that it was important to point out that the Pathological Report dated 21.3.2013 prepared by Dr. Richa Gupta categorically stated that no spermatozoa was seen in vaginal smear slide and the slide prepared from swab.
21. Therefore, in order to falsely framed the applicant, the CBI manipulated, fabricated and obtained bogus report dated 9.7.2014 from CDFD, Hyderabad. The allegation that semen of the applicant was present in the vaginal slides of the deceased prepared at the time of the post mortem is baseless as the accused never had any sexual contact or relation with the deceased. As per the Pathological Report dated 21.3.2013, no spermatozoa was seen in the vaginal smear slide and the slides prepared from swab. Pursuant to the receipt of the said report, the CBI sent a notice dated 12.9.2014 to the applicant directing him to appear in its office on 17.9.2014 to undergo for potency test and thereafter, they applied to the CBI Court, Ghaziabad, which dismissed their application for conducting potency test. Thereafter, CBI made all endeavors to forcibly obtain the semen of the applicant to plant the same on the vaginal slides of the deceased which were in their possession. The story developed by the CBI that the applicant raped the deceased is false and is solely based on DNA report and it ignored the other circumstances and evidence which would be present in case of rape.
22. Further, it is mentioned that in the statement made to CBI by Dr. Raj Bahadur Singh one of the two Doctors who performed the Autopsy of the deceased and confirmed that they were specifically asked by the police about point no.4 of the postmortem report, and it has stated by them, that on external examination of all such portions of the body during autopsy nothing notable was observed. The genital organs of the deceased did not bear injuries or showed any mark of force and, hence, indicated that no rape took place.
23. After submission of supplementary report under Section 173 (8) Cr.P.C. dated 13.12.2015 filed by CBI, the first informant Rich Pal Sharma moved an application before the trial Court on 13.4.2016 praying that the applicant be taken into custody under Sections 376, 201 IPC, and upon its consideration without applying any judicial mind vide order dated 12.5.2016, the Sessions Judge allowed the application and took the applicant into custody and also illegally rejected his bail application on 24.5.2016. Hence, this is the first application of the applicant before High Court and this Court had granted bail in this crime under Section 302/376/511 IPC thus, addition of Sections 376/201 IPC are not graver than the already charged Section i.e. 302 IPC. Hence, there was no question of arrest under newly added Sections. In view of the fact that he never misused the liberty and that there is no change in the circumstances of the case after grant of bail to the applicant except that a supplementary charge-sheet under Section 302, 376 and 201 IPC has been filed by the investigating agency, the bail application has been rejected on the presumption that in future the case might fall in a category of some graver offence i.e. under Section 376A IPC which is illegal. The evidence relied upon by CBI, which changed the crime from 376/511 to 376 was available with them, since, July 2014 and since thereafter, no further development has taken place other than filing of the charge-sheet by CBI. There was no motive for the applicant to commit the present offence. He has no bad criminal antecedents and has not been previously convicted. There was no chance left for tampering with the evidence and he is in custody since 12.5.2016, therefore, he should be released on bail.
24. The first informant of this case filed counter affidavit on 15th September, 2016, in which he has opposed the grant of bail to the applicant stating therein that there is a report of Centre for DNA Fingerprinting and Diagnostic, Hyderabad (High-tech Lab) dated 9.7.2014 establishing that biological semen being present on the vaginal smear slides of the deceased belonged to the accused-applicant. The expert opinion of Forensic Medicine and Toxicology Osmania Medical College, Hyderabad goes to prove that the crime was committed in a gruesome manner and from the post mortem report it was clear that there were multiple incised wounds and stab wounds over the body of the deceased which indicates severe emotional let out and frustration which the applicant had expressed and that suggested that the crime was opposed by the victim which ensued in inflicting injuries on her in both knees and hands to make her surrender to his intentions. There was every likelihood that the witness would be influenced in the trial as most of them belonging to employees of Dayal Bagh Educational Institute and the applicant being grand son of President of Dayal Bag Educational Institute.
25. A supplementary counter affidavit has also been filed from side of the informant with which an order of the Apex Court dated 23.4.2018 has been annexed to the following effect:-
"It is stated by learned counsel for the petitioner that in respect of offences punishable under Section 376 and 201 IPC which have been added by the supplementary charge-sheet the bail petition/ application of the accused/respondent-Uday Swarup before the High Court is pending. The High Court may hear and decide the same without taking into account its previous order dated 10th February, 2014 granting bail to the accused-respondent in respect of offence punishable under Section 302 IPC which order is under challenge in the present Special Leave Petition (Criminal) No. 4045 of 2015. We could expect from the High Court to take a decision on the entitlement of the accused/respondent Uday Swarup for bail within a period of four weeks from today.
List this matter after six weeks."
26. Third supplementary counter affidavit dated 9.1.2018 has also been filed by the informant.
27. From the side of the CBI counter affidavit, second supplementary counter affidavit and third supplementary affidavit have been filed in which the grant of bail to the applicant has been vehemently opposed.
28. There are two rejoinder affidavits filed from the side of the accused-applicant and in each of them, the same facts having been reiterated which have been mentioned in the affidavit, apart from the fact that only two slides were prepared by the Doctors (Dr. R.P. Singh and Dr. R.B. Singh) who conducted the Autopsy, which is apparent from the post mortem report of the deceased dated 16.3.2013. It is also mentioned that the manipulation of CBI is apparent from the record made available by it which goes to show that in addition to the above mentioned two slides prepared by Dr. R.P. Singh and Dr. R.B. Singh during the post-mortem strangely four stained vaginal smear slides were sent for DNA analysis. These two additional stained vaginal smear slides were in-fact procured to fabricate and implant false evidence against the applicant and these were never procured during the course of the investigation or post mortem. A fictitious story has been developed by the CBI that applicant raped and murdered the deceased which is based on their imagination because the Doctors who performed autopsy have confirmed that there were no signs of rape upon deceased.
29. After having heard both the sides and perused the post-mortem and DNA report, we find that in post-mortem report the deceased is found to have sustained as many as 12 incised wounds which suggests brutal murder of the deceased and in the statement of Dr. Raj Bahadur it has clearly been stated that since the police had requested to examine whether the rape was committed or not upon the deceased, they had taken the vaginal swab and prepared vaginal smear slides and the same were handed over to the police in a sealed condition with other materials etc for the purpose of DNA testing. The entire process of postmortem was video graphed. It is apparent that till the autopsy, the DNA report had not been received but subsequently, it has been received which clearly establishes as below:-
1. The biological fluid (semen) present on the source of exhibit A (vaginal slides of deceased) is from the source of exhibit Z27 (Sri Uday Sarup).
2. The source of exhibit S (hair from scene of crime, 2 out of 10 hair strands) is from the source of exhibit Z27 (Shri Uday Sarup).
30. Therefore, this DNA report is a strong peace of evidence against the accused though it has been tried to be doubted by learned counsel for the accused/applicant because according to him there were only two vaginal smear slides prepared at the time of autopsy while at CDFD Lab four such slides were found to have been sent and, therefore, there being difference in the number of slides, it was also argued that the same could not be trustworthy. We are not inclined to accept the argument raised on the part of the learned counsel for the applicant.
31. In view of the above arguments and the evidence on record which has been gathered by the prosecution to the effect that 12 incised wounds are found on the person of the deceased and the semen in DNA report was found to be that of the accused, we find that this is not a fit case in which bail should be granted to the accused/applicant. Hence, the bail application of the applicant is rejected.
32. Simultaneously, the prayer for permission to appear in I.A.S. examination in police custody is also rejected as is prayed in supplementary affidavit filed.
Order Date :- 28.5.2018/Neeraj (Dinesh Kumar Singh-I, J). (Ramesh Sinha, J).