Court No. - 88
Case :- CRIMINAL APPEAL No. - 3338 of 2020 Appellant :- Yashank Goyal Respondent :- State of U.P. and Another Counsel for Appellant :- Alok Ranjan Mishra,Gopal Swarup Chaturvedi(Senior Adv.) Counsel for Respondent :- G.A.,Janardan Prasad Tripathi,Ved Prakash Mishra
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Gopal Swarup Chaturvedi, learned Senior Counsel for the appellant, Sri Bhanu Prakash Singh, learned Brief Holder for the State and perused the material available on record.
This Criminal appeal under Section 14-A(2) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocties) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 07.11.2020, passed by Special Judge S.C./S.T. (P.A.) Act, Moradabad in Case Crime No. 1418 of 2020, under Sections - 302, 201, 364 I.P.C. & Section - 3(2)(V) of The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocties) Act, 1989, Police Station - Civil Lines, District - Moradabad.
Argument, in brief, for the appellant is that, it is a case based on circumstantial evidence and appellant had no motive to commit the crime. In usual course of business, both the deceased and the appellant were involved in carrying out many projects and they had completed many work and they dealt in the business of marbles and tiles. The piece of evidence is not consistent and conclusive. It being a circumstantial evidence case, it was a must to establish the motive and the last seen theory and its proximity with death being soon after the last seen. Here the gap is wide, the incident of last seen occurred at 6:00 p.m. on 14.10.2020. This last seen was deliberately created that the deceased was seen in company with the three persons including the appellant at his office at Moradabad and thereafter there is no clinching evidence that all the three persons continued with the company of the deceased. The chain of circumstances are not intertwined so as to establish hypothesis of the guilt of the accused-appellant that he alone in company with co-accused has committed the crime.
In view of above, this weak last seen theory would not be treated to be conclusive so as to give rise to any conviction. There is no proof that the appellant was found loitering near the place from where the dead body was recovered at Garhmukhteshwar. Moreover, there is no link evidence connecting movement of the appellant consistently right from his office upto the place of recovery or to near places. More so, a concocted story was set up by the police in order to give colour to the theory of murder. The theory set up, if believed, to be correct in part and parcel, then the whole prosecution case falls flat. It is case of the prosecution that the deceased was given beating inside the room by as many as three persons including the appellant and surprisingly the entire post- mortem report is silent about any injury being caused on the body of the deceased, then the mis-handling of this case by the police and the handi work of the police is exposed to the core that in order to give concrete shape to the above theory, false recovery was planted and that too of rope, match sticks and other gadgets recovered from the spot. The statement of the witnesses were also recorded belatedly. The F.I.R. itself indicates it all a case of missing report and high suspicion only. No specific or strong motive has been mooted by the prosecution, unless the motive is strong for committing murder, in a case based on circumstantial evidence, one cannot be found guilt merely on the basis of weak last seen, that too is not complete except to the extent of conversing with each other and nothing more. In case, the appellant is admitted to bail, there is no possibility of his absconding or misusing the liberty of bail. The appellant has no criminal history and is languishing in jail since 19.10.2020.
While, retorting to the aforesaid argument Sri Bhanu Prakash Singh, learned Brief Holder for the State has submitted that in this case, it is evidence against all the accused-appellants that they were seen on 14.10.2020 at 6:00 p.m. at the office of Yashank Goyal and after some hot altercation took place and hard beating was given by all the three accused to the deceased inside the house. Thereafter, the accused was seen leaving the place in company with the other two accused. Sajid-the co-accused was on motor cycle leaving the last seen place and the other two co-accused leaving the scene of occurrence along with one unknown person in a black Creta car and there is specific testimony that the deceased was called at the office of appellant by none other than the appellant himself.
However, learned Brief Holder for the State has not disputed the other aspects that there is no evidence regarding fact that the deceased was identified on the spot while leaving the place of occurrence (last seen) and no evidence regarding loitering of the appellant near the place from where the dead body was recovered.
I have considered the rival submissions so made and having gone through the entire record as well as the order by which, bail application of the appellant-applicant has been rejected, impugned herein in this appeal.
Nothing convincing has been argued on behalf of the complainant/ State so as to justify and sustain the order passed by the court below rejecting the bail application of the appellant. Certainly it cannot be said that the chain of circumstances are consistently established.
Thus, in view of the above and having regard to the facts and circumstances of the case and keeping in view the evidence, complicity of accused, I am of the view that the appellant has made out a case for bail.
Accordingly, this appeal is allowed and the impugned order dated 07.11.2020, rejecting the bail of the appellant is set aside.
Let the accused-appellant, namely, Yashank Goyal involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of Court concerned subject to the condition that appellant shall cooperate in the trial and will not tamper with the evidence.
Observations made in the order shall be confined to the disposal of this appeal and shall not travel beyond that and the trial court shall not be prejudiced by the same in any manner.
Order Date :- 6.4.2021 S Rawat