Allowed

Ajay @ Anoop @ Ashok Kumar Gharadiya v. State of U.P.

Allahabad HC4 Jan 2022/3487/2020

Case brief

AI extract

What is this about?

The Single Judge allowed a bail application for an accused charged under Section 302 IPC. The court held that the prima facie case was not established due to gaps in the circumstantial evidence and lack of direct links, ruling that gravity of offence does not preclude bail.

What did the court decide?

Release of applicant on bail by furnishing a personal bond of Rs. 50,000/- and two reliable sureties of the like amount, subject to four additional conditions including filing an undertaking against a

Ajay @ Anoop @ Ashok Kumar Gharadiya Vs State… — Murder and Culpable Homicide | Allahabad HC (2022)

A.F.R.

Court No. - 14

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3487 of 2020

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Applicant :- Ajay @ Anoop @ Ashok Kumar Gharadiya Opposite Party :- State of U.P. Counsel for Applicant :- Anurag.S. Kaalesh Counsel for Opposite Party :- Govt. Advocate

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Hon'ble Vikas Kunvar Srivastav,J.

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The case is called out.

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Learned counsel for the bail applicant, Sri Anurag. S. Kaalesh, Advocate and learned A.G.A. for the State Sri L.J. Maurya, Advocate are present in the Court.

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The present bail-application is moved on behalf of the accusedapplicant "Ajay @ Anoop @ Ashok Kumar Gharadiya", involved in Case Crime No.061 of 2015, under Sections 302, 201, 34 of I.P.C., registered at Police Station Alambagh, District Lucknow.

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The occasion of present bail application has arisen on rejection of bail application of accused-applicant by learned Additional Sessions Judge, Court No.1, Lucknow vide order dated 17.12.2019.

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Learned A.G.A. argued the case on the basis of counter affidavit filed on behalf of the State.

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On the basis of materials placed alongwith affidavit in support of bail application as annexures, learned A.G.A. submitted that an unknown dead body floating in the drainage stuck on behind the shop of informant, Manoj Kumar Sharma, by reason of some obstructions in the drainage, the dead body was dragged out from the drainage by the local police. It was found in post mortem report that the dead body was about two days old as rigor mortis was passed over the whole body and skin was pealed off severally.

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This is the incident dated 13.02.2015. The police entered into Case Diary, the identification details and took photographs of the unknown dead body. Two days later, one Ram Autar Ladh resident of Village Harinam Kheda, Police Station Asoha, District Unnao came at

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the Police Station Alambagh, District Lucknow on information received about the recovery of unknown dead body from drainage suspecting that might be of his son, missing from several months. He identified the dead body from the photographs that the same was of his son who was living alongwith one Ajay @ Anoop @ Ashok Kumar Gharadiya and Anil, both resident of District Lucknow. The father, Ram Autar Ladh stated, he earlier had come at the place of residence of his aforesaid son with Ajay and Anil but did not find them. This was the incident on the festive days of Holi when he did not find his son. He apprehended that the aforesaid Ajay and Anil might have murdered his son and threw the body into the drainage for vanishing the evidence of their guilt.

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The aforesaid Ajay and Anil were apprehended by the Police and on the disclosure by Ajay in the custody, the police party went to the place on his leading and recovered the article of murder, namely, knife. It is the confessional statement on the basis of which, the present accused-applicant was connected with the crime of killing the deceased "Umesh @ Banafar @ Jaggu", the son of Ram Autar Ladh. The post mortem report has also reported anti mortem injuries, which are as follows:-

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"Stab wound 2 cm x 1 cm. x trached deep present on lateral aspect of left side neck, 5 cm. below angle of left mandible, margin sharp, crescent & well defead on opening, ecehymosis under neath the injury under lying soft tissues, minor & major vessels of left side neck, found."

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The only evidences whereupon the police has submitted the charge sheet before the Court are confessional statement of the present accused-applicant. The knife recovered on the leading of the accusedapplicant when he was in custody and the statement of father of the deceased, Ram Autar Ladh to the effect that when he first came to Lucknow to meet his son, he was residing with Ajay and Anil but when again on the festive days of Holi, he went there to meet his son he did not find him, even the aforesaid Anil and Ajay were also not found there. Forensic Science Laboratory's report is also taken into consideration which examined the clothes, wore on the person of the dead body stained with blood and it was reported that the same was human blood. However, the knife was sent for the forensic examination but human blood was not reported thereupon as the stains were diffused.

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Learned counsel for the bail-applicant argued that there is no strong prima facie case or even the case reasonably to be believed for fastening the present accused-applicant under Section 302 of the I.P.C. as neither the direct evidence with regard to the involvement into the offence of killing under Section 302 read with Section 34 of I.P.C. with some other co-accused nor circumstantial evidences are there to form a chain so as to lead the only conclusion about the killing of the deceased "Umesh @ Banafar @ Jaggu" by the accused and none else.

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On the aforesaid plea, learned counsel for the bail-applicant submitted that the accused-applicant is a local resident of the District Lucknow and a common man having no criminal antecedents for the reason of which, he may be held to tamper with evidence and to adversely affect the witnesses. Learned counsel for the bail-applicant further submitted that even he is facing trial and almost six prosecution witnesses have been examined in the case, therefore, there is no possibility of tampering with the evidences now, if he is released on bail, it would facilitate him to put his defence efficaciously and properly.

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Learned A.G.A. for the State who has argued in the case on the basis of counter affidavit filed on behalf of the State opposed the bail on the ground that the accused-applicant was last seen by the father of the deceased with the deceased when he was alive. Secondly, he argued that the knife recovered from the possession of the accusedapplicant also bears stains of blood, however, it could not be determined by reason of technical cause of diffusion, whether the same is of human blood or otherwise. Thirdly, learned A.G.A. submitted that the accused-applicant has admitted himself his involvement in the killing of deceased.

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Learned A.G.A. further stated that the deceased was in habit of taking smack as said by the father, therefore, the possibility cannot be denied of over powering him by the accused-applicant for the purpose of killing, therefore, the accused-applicant cannot plead his innocence for the purpose of grant of bail.

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In Prahlad Singh Bhati Vs. NCT, Delhi and another - (2001 4 SCC 280 ) , Hon'ble the Supreme Court has held some parameters for grant of bail, which are being quoted hereunder:-

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"8. The jurisdiction to grant bail has to be exercised on

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the basis of well-settled principles having regard to the

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circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

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Hon'ble the Supreme Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)-(Spectrum Scam Case)] , has laid down certain objects of bail under Section 437 & 439 of the Cr.P.C. which are as follows:

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

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22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will

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tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

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23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

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In the present case where the father stated, he had lastly seen the accused-applicant with his son when he was alive long ago much before the date 13.02.2015 when the dead body was found in the drainage on the information of Manoj Kumar Sharma, a shopkeeper of the area. Last seen evidence is important when the witness disclose the accused-applicant was seen in the company of deceased just before his death when he was alive. There should not be an unreasonable and unexplained gap of time between the time when the accused last seen with the deceased when he was alive and his death. The father’s statement cannot be treated as last seen evidence as the same has no nexus with the probable time of death. Moreover, when the direct evidence is not available and in absence of direct evidence, the circumstantial evidences as collected by the Investigating Officer are not so intact and unbroken so as to make a chain of sequence so as to prima facie hold liable the present accused-applicant and none else for killing of the deceased "Umesh @ Banafar @ Jaggu", whose body was found on 13.02.2015 in drainage and identified by Ram Autar Ladh as his son. This is also doubtful that whether Ram Autar Ladh has correctly identified the dead body of his son, as the doctor, who done the autopsy and prepared the post mortem report when examined in the Court stated that the private part (penis) in the religious tradition of Islam had circumcision ( Khatana ) which signified the dead body might be of a mohammedan male.

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All these doubts either may find affirmation or be disproved only in the course of trial by cogent and sufficient evidence. At this stage of grant or refusal of bail, only this is to be assessed that whether prima facie case of the prosecution is established with regard to the offence with which the accused-applicant is arraigned. The answer would certainly be ‘No’, the prima facie case of prosecution is not established. Gravity of offence alone cannot be taken for refusal of

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bail even severity of punishment is not material for consideration of bail plea.

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Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence, as it is held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22 , I find force in the submission of learned counsel for the bailapplicant to enlarge him on bail.

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Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.

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Let applicant ( Ajay @ Anoop @ Ashok Kumar Gharadiya ), involved in Case Crime No.061 of 2015, under Sections 302, 201, 34 of I.P.C., registered at Police Station Alambagh, District Lucknow be released on bail on his furnishing a personal bond of Rs.50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and if the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate

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proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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Order Date :- 4.1.2022

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Saurabh

Ajay @ Anoop @ Ashok Kumar Gharadiya v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ajay @ Anoop @ Ashok Kumar Gharadiya v. State of U.P.

Case brief

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