Court No. - 39
Case :- CRIMINAL APPEAL No. - 2437 of 2021 Appellant :- Virendra Yadav Respondent :- State of U.P.
Counsel for Appellant :- Phool Singh Yadav Counsel for Respondent :- G.A.
Hon'ble Manoj Kumar Gupta,J. Hon'ble Om Prakash Tripathi,J.
Ref:-Criminal Misc. Bail Application No. 1 of 2021 Heard Sri Phool Singh Yadav, learned counsel for the appellant and Sri S.K. Mehrotra, learned AGA for the State and perused the impugned judgment and order and the record of the trial court.
The appellant has prayed for being enlarged on bail in the instant appeal. He has been convicted under Section 302 IPC for life imprisonment and fine with default clause, under Section 201 IPC for 5 years imprisonment and fine with default clause, under Section 364 IPC for 10 years rigorous imprisonment and fine with default clause.
In short, according to the prosecution case, Sanjay Kumar, father of Anubhav Kushwaha (victim), lodged a compliant at 00:15 in the intervening night of 29th and 30th November 2016 that his son Anubhav, aged 14 years, a student of high school was returning home from school on 29.11.2016 at 2 pm, but he did not reach the house till evening. When he searched for his son, he came to know at about 3 pm that his son was seen with some person on a grey colour scooty near Malti Guest House Deerapur Road Bhatuli, Police Station Rura. Thereafter, he could not get any information about his son.
Initially, the complaint was registered as Case Crime no. 391 of 2016 under Section 363 IPC. On 30.11.2016, a memo was received from the Station Master, Railway Station Rura regarding a dead body lying on the rail track. The complainant identified the dead body as that of his son Anubhav. On 30.11.2016, itself a panchnama was prepared and thereafter, postmortem was conducted. As per postmortem report, cause of death was asphyxia due to ante-mortem strangulation. The case was thereafter converted to that under Sections 364, 302 and 201 IPC. On 01.12.2016, accused-appellant was arrested and according to the prosecution case, identity card of the victim was found from his rented house.
It is submitted by learned counsel for the appellant that there is no direct evidence relating to commission of crime by the accused-appellant. There were two witnesses of last seen namely, daughter of the complainant (PW2) and Mukesh Kumar (PW6). PW6 had turned hostile. Daughter of the complainant alleged that she had seen her brother Anubhav near Rura Railway Crossing Cabin while returning home from school. At that time, her brother was on his cycle and accused- appellant was on scooty. They were talking to each other. In her cross-examination, she also alleged that accused-appellant used to visit her house for fixing the problem of Dish. She has offered explanation for not informing her father regarding her having seen the accused-appellant talking to her brother on 29.11.2016. It is to the effect that after returning from home, she went for coaching at 4 pm and returned from coaching at 6 o'clock and thereafter, slept without taking evening meal. She was not aware of her brother not returning home. She told her father in this regard next day in the morning. It is urged that Inquest was done at 11 am on 30.12.2016, but even therein there was no mention that the victim was seen by the complainant's daughter in the company of the accused-appellant despite the fact that complainant is one of the witness of the inquest. It is also urged that alleged recovery of the identity card was fully bogus and was implanted. There was no independent witness of the recovery, though, it was allegedly made from the rented house of the accused-appellant. It is further submitted that there is no clear cut motive attributed to the accused-appellant for committing the crime.
Learned counsel for the appellant further submitted that the appellant has not been convicted in any other offence. He pointed out that although, he is accused in one other criminal case, but therein he is on bail. He urged that the appellant has been in jail since 01.12.2016 and if he is enlarged on bail, he will not misuse the liberty of bail.
Learned AGA submits that there is evidence of last seen and also recovery of identity card from the rented house of the accused-appellant and thus, the bail application deserves to be rejected.
There is no clear cut finding in the impugned judgment and order relating to motive for committing the crime. It is not disputed before us that only solitary evidence of last seen is that of PW2, who as urged by learned counsel for the appellant, is said to have disclosed the fact relating to her brother being seen in the company of the accused-appellant after lapse of considerable time since her brother had gone missing. The recovery memo is not witnessed by any public witness. He also does not dispute that in other criminal matter, in which, the accused-appellant is involved is still pending and there is no conviction order against him.
Having regard to the entire facts and circumstances of the case, the gravity of the offence, the period of detention, without expressing any opinion on merits, we are of the opinion that the appellant has made out a case for grant of bail.
Let the appellant Virendra Yadav convicted and sentenced in Sessions Trial No.99 of 2017, in Case Crime No.391 of 2016 u/s 364, 302, 201 IPC, P.S. Rura, District Kanpur Dehat be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned. The realisation of half of the fine shall remain stayed. However, the remaining amount of the fine shall be deposited.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
As lower court record has already been received, office is directed to proceed with the preparation of paper book and thereafter list the instant appeal for hearing.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by representative(s)/counsel of the appellant along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 29.10.2021 Vikram Gupta (Om Prakash Tripathi, J.) (Manoj Kumar Gupta, J.)