Criminal Appeal against bail rejection. The High Court held that last seen evidence along with post-mortem injuries established prima facie complicity. The appeal was dismissed as devoid of merit.
The criminal appeal stands dismissed as it was devoid of merit and no illegality or perversity was found in the impugned order.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 67
Case :- CRIMINAL APPEAL No. - 1147 of 2021
Appellant :- Ajay Kushwaha Respondent :- State of U.P. and Another Counsel for Appellant :- Karan Singh Yadav Counsel for Respondent :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Karan Singh Yadav, learned counsel for the appellant and Shri Ghanshyam Kumar, learned A.G.A. at length.
Perused the impugned order dated 27.01.2021 and supporting documents in this appeal.
Office report dated indicates that despite of service of notice upon opposite party no.2, no one has turned up on behalf of opposite party no.2 to defend his case. Left with no other option, with the help and aid of learned A.G.A., the Court is proposing to decide the present appeal.
Learned A.G.A. has already filed counter affidavit and the learned counsel for the appellant does not want to file rejoinder affidavit, instead he proposes to argue the case on merits.
This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for settingaside the bail rejection order dated 27.01.2021 passed by learned Special Judge, SC/ST Act, Jhansi in Bail Application No.47 of 2021 (Ajay Kushwaha vs. State of U.P) in Case Crime No.737 of 2020, under Section 302 I.P.C. and Section 3(2)5 of SC/ST Act, Police Station-Sipri Bazar, District-Jhansi.
As per text of the F.I.R., one Devi Dayal Ahirwar lodged the present F.I.R. on 20.12.2020 for the incident said to have taken place on 16.12.2020 u/s 302 I.P.C. and Section 3(2)(v) SC/ST Act, Police Station-Sipri Bazar, District Jhansi, against sole named accused-appellant Ajay Kushwaha with the allegation that the informant's son Veer Pal Singh resides in Mohalla Mission Compound on the rent. He was mason by profession and Ajay Kushwaha the appellant had worked with him as labour. Both of them were having close acquaintance. On the fateful day, the informant got an information that his son's
dead body is lying in Pal Colony. On this, the informant rushed to Medical College Jhansi where his son's dead body was sent and he identify the same that the dead body belongs to his son Veer Pal. After gathering the information it was revealed to him that the dead body was lying on the side of service road of Jhansi Datiya Highway, where the appellant in the stage of intoxication has given a blow over his head resulting his death.
On this prosecution case, the learned counsel for the appellant has strenuously argued that a highly belated F.I.R. after four days of the incident was cooked up by the informant relying on the hearsay evidences and has falsely implicated the appellant in the present case. There is no ocular testimony to the entire incident and all the alleged witnesses, who are said to have seen the occurrence, have given their testimonies at a very belated stage, loosing its credibility. There is no recovery of any incriminating material from the possession or at the pointing out of the appellant. It has been also been argued by learned counsel for the appellant that except the evidence of "last seen", there is no other material on record to show the complicity of the appellant in the commission of the offence.
I have perused the post-mortem report of the deceased which reveals that there are three injuries over his person, namely, (i) lacerated wound 2cm x 1cm on the back of the head deep bone (ii) contused swelling 4 cm x 2 cm over left eye side and (iii) abrasion 2 cm x 1 cm on the right nostril of nose. As per the opinion of doctor, the deceased has died on account of ante mortem injuries over his person.
I have heard the arguments advanced by learned counsel for the appellant. The soul and gist of the entire argument raised by learned counsel for the appellant is that the dead body was recovered on 17.12.2020 and its inquest was prepared on the same day, then there was no reason or occasion of lodging the F.I.R. after four days of the incident i.e. on 20.12.2020 and the arrest of the appellant was affected on 22.12.2020. After 23 days of the alleged incident, one Gappu Lal in his statement u/s 161 Cr.P.C. has raised a suspicion against the appellant and mentioned that he has seen the appellant with the deceased on the fateful day. In addition to above, after one month and two days, the police has recorded the statements of Gautam, Parvati and Adarsh on 18.01.2020, in which all these witnesses has given a clear
statement that they have seen the appellant with the deceased at a wine shop. Learned counsel for the appellant has tried to create doubt on the statement u/s 161 Cr.P.C. on the ground that the witness Adarsh is nephew of the deceased, who is contractor of the appellant where the appellant and the deceased was was doing his mason work and the appellant were doing as labourer over the same site. This by itself would not going to discord the credibility of statements of these witnesses, that too, where it is the own admission on behalf of appellant that there is no other evidence except 'last seen'.
On this admission of having last seen evidence, it is the binding duty of the appellant to spell out that when both of them the appellant and the deceased were in abbreviated condition then what is the good ground of false implication. It is not a case of mistaken identify, where all three witnesses, namely Adarsh, Parvati and Gautam have given different names of accused whereas all of them in their statements clearly mentions that they identified the deceased Veer Pal as well as the present appellant Ajay Kushwaha. Smt. Parvati in her statement submits that she saw the present appellant with the deceased at 07.00 in the evening. On the similar line, Gautam too has indicated that he has seen the appellant with the deceased around same time. Now it is for the defence to produce the document to shift the burden but it is own admission on the part of the appellant that except the last seen evidence, there is no other evidence on record. This by itself prima facie establishes the fact that the appellant was present with the deceased at the relevant point of time. There are injuries over the head of the deceased and it is just possible that there was scuffle between the appellant and the deceased, in which the appellant might have given a fatal blow over the deceased.
Taking into account the totality of circumstances, the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I do not find any illegality or perversity in the impugned order dated 27.01.2021.
Accordingly, the present appeal, being devoid of merit, stands DISMISSED.
Order Date :- 27.9.2021 M. Kumar
2 issues framed by the court
Whether the impugned order rejecting bail under Section 14 A (2) of the SC/ST Act was legal and free from perversity.
Whether the last seen evidence combined with post-mortem injuries establishes prima facie complicity of the appellant.
1 provisions across 1 enactments
Ajay Kushwaha
State of U.P.
Rahul Chaturvedi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
