Allowed

Sumit Katiyar v. State of U.P.

Allahabad HC3 Jan 2022/8840/2021

Case brief

AI extract

What is this about?

The court allowed a bail application filed by Sumit Katiyar charged with murder and conspiracy under the IPC. The court found the prima facie prosecution case not established due to lack of corroborative evidence beyond confessional statements and bank transactions denied by the applicant, and released him on bail with conditions.

What did the court decide?

The applicant was released on bail by furnishing a personal bond of Rs. 1,00,000 and two surety bonds, subject to specific conditions regarding court appearances.

Sumit Katiyar Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 14

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[Case :- CRIMINAL MISC. BAIL APPLICATION No.- 8840 of 2021]

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Applicant :- Sumit Katiyar Opposite Party :- State of U.P. Counsel for Applicant :- Amitabh Tripathi,Akhilendra Pratap Singh,Amitabh Tripathi,Atul Verma

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Counsel for Opposite Party :- G.A.,Armendra Pratap Singh,Ram Kumar Yadav

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Hon'ble Vikas Kunvar Srivastav,J.

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The case is called out through video conferencing.

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Learned counsel Sri Atul Verma, Advocate for the accused-applicant and learned Additional Government Advocate on behalf of the State as well as learned counsel for the complainant Sri Amrendra Pratap Singh, Advocate are present through video conferencing in virtual hearing of the case.

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The present bail application has been filed on behalf of the accusedapplicant-Sumit Katiyar who is involved in FIR No. 50 of 2021, under Sections 302/120-B of IPC, Police Station PGI, District Lucknow.

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The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Special Judge Anti-Curruption, CBI (Central), Lucknow in B.A. No. 3330/2021, dated 01.07.2021.

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Learned counsel Sri Atul Verma, Advocate reading over the First Information Report registered on 01.02.2021 in the Police Station PGI, District Lucknow with regard to the incident dated 31.01.2021, submitted that according to FIR the dead body of the deceased Avinash Kumar Singh was found hanging from a tree after killing him by some unknown persons. The informant of the case is wife of the deceased Avinash Kumar Singh, namely, Smt. Nidhi Katiyar. She has reported that her husband, the deceased Avinash Kumar Singh was a proprietor of Next Jen Food Factory situated at Sarojini Nagar Area, Lucknow where he used to go everyday in the morning and come back in the evening at about 8 to 8:30 p.m. On 30.01.2021 when he did not return from the factory and his phone was also found switched off, a missing report was lodged by the complainant, the wife, with fear of any untoward incident with her

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husband. She was informed in the noon of next day by a media reporter that an unknown dead body is found hanging from a tree and he told about the clothes wore on by the deceased. She apprehended the dead body of her husband reached at the spot alongwith her family members, she found the dead body of her husband hanged in a tree. The police was present there who recorded her statement. In the statement, the informant told the police that in her knowledge her husband had no enmity with any person and she is not suspecting anyone in her knowledge responsible for commission of offence.

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Reading over the First Information Report, learned counsel argued that the name of present accused-applicant was neither given in the First Information Report nor suspected in her statement recorded by the police just after the dead body was found hanging from a tree.

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Learned counsel further submitted that the name of the present accused-applicant first of all came into light in the recovery memo dated 09.02.2021 prepared by the Inspector PGI. It is stated in the recovery memo that the said Inspector when alongwith his companion police officers and official was patrolling, a reliable source of police informed that the suspected murders in Avinash Singh’s murder case are coming on a Swift Desire Car and motorcycle through the way from Sitapur to Hardoi bypass road. Relying on the police informant, when the police party proceeded on the said road, they found a White colour Swift Desire Car and a motorcycle parked on the roadside and some persons were standing there. The police informer indicated those to be the persons involved in Avinash Singh’s murder case. When they were apprehended one told his name Sumit Katiyar and another Anmol Katiyar. The third person told his name Vishal Verma @ Aditya Singh @ Shivam @ Divyansh @ Dibbu @ Rajan, from whose possession Rs.100,000/- cash was recovered. From the possession of 4^th person Sunil Gupta @ Rajan Rs. 50,000/- cash was recovered. Other persons were possessed several mobile phones and sim Cards.

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Learned counsel, on the basis of aforesaid fact of recovery memo, argued that according to the statement of the aforesaid persons caught by the police, the sister of Sumit Katiyar, namely, late Kamini had love affair

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with Prashant Singh but their marriage could not be substantiated by reason of excessive demand of dowry. The marriage of late Kamini was further settled with another person, namely, Surjeet which was scheduled to be held on 02.12.2020. The preparation was going on, meanwhile, the aforesaid Prashant Singh went to the house of Surjeet and told his family about his love affair with Kamini. Shocked thereby, the family of Surjeet, cancelled the proposed marriage. Kamini annoyed thereby committed suicide. Coincidentally, Prashant Singh was a friend of Nidhi Katiyar’s brother, namely, Vikram @ Vikki and Nidhi Katiyar herself is cousin sister of Sumit Katiyar. The family of the Sumit Katiyar was under belief that if the brother of Nidhi Katiyar, namely, Vikram @ Vikki took interest in settling the dispute with Prashant Singh, the marriage between Surjeet and Kamini would have been performed but since they took no interest in settling the dispute by reason of which Kamini committed suicide. The Plan to teach a lesson to Nidhi Katiyar, the accused-applicant designed conspiracy to kill her husband Avinash Kumar Singh (deceased).

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It is further stated by the accused persons that Sumit Katiyar promised to pay Rs. 300,000/- to Anmol Katiyar for the purpose of aforesaid killing. Out of which Rs. 60,000/- was paid to Vishal Verma through bank and rest of the money was promised to be paid after killing. According to plan, on 30.01.2021 at about 7:30 p.m. in the evening, Vishal Verma and Sunil Gupta intercepted the Car of Avinash Kumar Singh when he was on the way from Sarojini Nagar to his home and forcibly opened the glass of the Car of Avinash Kumar Singh, abducted him under the fear of firearm and pushed him in the back portion of Car’s Cabin. Shivam Verma drove the Car of Avinash towards Kanpur and after Sohramau when they reached in a deserted place of highway, they stopped the Car and inside the Car they strangulated Avinash Kumar Singh from his own ‘Maflar’ and with a view to shape the killing as a case of suicide, they hanged the dead body from a tree.

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Learned counsel submitted that only by reason of this confessional statement made to the police, the present accused-applicant is implicated in the case, otherwise there is no direct evidence.

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Learned counsel further submitted that the present accusedapplicant and Anmol Katiyar both are in the business of sell and purchase of land and in connection therewith they usually remain together but so far as the allegation as to the involvement in killing by way of hiring the killers and promise them to pay Rs. 300,000/- is baseless.

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He further argued that the present accused-applicant has no criminal antecedent and he is a local resident of the locality and admittedly in relation with the complainant, therefore would have no occasion to flee away from the process of the Court or to tamper with the evidence as the evidences are collected by the Investigating Officer and chargesheet is submitted in the Court.

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Learned counsel further submitted that the accused-applicant is in jail since 09.02.2021 for no fault of him, therefore he should be released on bail.

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Learned AGA on behalf of the State opposed the bail plea in his counter affidavit relying on the recovery memo and confessional statements of the persons apprehended by the Investigating Officer.

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Learned counsel for the complainant Sri Amrendra Pratap Singh, Advocate has also argued in the case on the basis of counter affidavit filed by him on the same term and line of action as of the State counsel.

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Learned AGA for the State and learned counsel for the complainant both argued that not only the confessional statement of the accusedapplicant is disclosing the payment of money in lieu of killing of Avinash Singh by hired killers but also the statement of Axis bank wherein in the account of one of the killer, the money was paid by Anmol Katiyar on behalf of Sumit Katiyar which is also evident the involvement of the accused-applicant.

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Learned counsel for the accused-applicant has denied the transaction in the Axis Bank account of the killers. He has filed rejoinder affidavit, of which paras nos. 5 and 6 are relevant and quoted hereunder:-

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“5- That the allegation of sending money from the Bank Account No. 919010087163113 of the applicant into the Bank Account No. 918010091378801 of co-accused Vishal Verma, as alleged in the Para 11 of the Counter Affidavit is false, as no such money has been transferred by the

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accused/applicant in the Bank Account of co-accused Vishal Verma. The Annexure No. C.A 6 does not contains any information which may support the prosecution version.

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6- That the Axis Bank has provided the statements of bank Account No. 918010091378801 from 01/01/2021 to 09/02/2021 belonging to Vishal Verma, the co-accused and the Bank Account No. 9190100871663113 from 01/01/2021 to 09/02/2021 belonging to accused/applicant Sumit Katiyar, in which no transaction of any money has been found. The bank statements are part of investigation record.”

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After hearing all the contesting parties to the present bail application, at this stage, to assess the prima facie case of prosecution against the present accused-applicant, it would be pertinent and important to see that whether the accused-applicant is established to have involvement in the offence by the evidence collected during investigation. There is no statement of witnesses which either have stated that at any point of time before killing of Avinash Kumar Singh, the deceased, when he was live, was seen with the accused-applicant or any telephonic conversation or statement of any independent witness with regard to the enmity of the accused-applicant Sumit Katiyar or the statement of cousin sister Nidhi Katiyar, wife of the deceased, in connection with the suicide of real sister of present accused-applicant, namely, Kamini.

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In the absence of any such evidence, only the transfer of money by Anmol Katiyar on behalf of Sumit Katiyar is not sufficiently believable to connect the accused-applicant Sumit Katiyar from the offence of killing of Avinash Kumar Singh by the hired killers of Avinash.

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Moreover, paras nos. 5 and 6 in rejoinder affidavit, quoted hererinabove, have clearly denied from any such transaction, as such, the prosecution case against the present accused-applicant, prima facie, found not established.

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Since the accused-applicant has no criminal antecedent, therefore, this cannot be said to have instinct of adversely affecting any witness of the case or tamper with the evidence. Since they are in the business of land dealing and this is only their source of livelihood, therefore, they cannot be believed to flee away from the process of the Court or flee away from the territorial limit of the Court.

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This is established principle of law that while assessing the entitlement of an accused to be released on bail, his role in the commission of offence with which, he is arraigned and the evidences as to his presence and involvement is to be given weight. In case the presence and involvement of accused is prima facie established then gravity of offence, apprehension as to the tampering of evidences and witnesses, if the accused is released on bail, are to be considered.

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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 the basis of well-settled principles having regard to the 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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The purpose of the bail is neither to punish the accused-appellant by keeping him in jail or to teach him a lesson but the object of the bail is to ensure the presence of the accused-appellant during the trial. 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

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

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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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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, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the accused-appellant to enlarge him on bail.

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Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by learned counsel for the parties and without commenting anything on merit of the case, I find it to be a fit case for granting bail.

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Let applicant- Sumit Katiyar be released on bail in FIR No. 50 of 2021, under Sections 302/120-B of IPC, Police Station PGI, District

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Lucknow, on his furnishing a personal bond worth Rs. 100,000/-(one lac) and two surety bonds by two different sureties whose social status and economic capacity as to the surety will be subject to the satisfaction and verification 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 misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate 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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[Vikas Kunvar Srivastav,J.]

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Order Date :- 03.01.2022 kkv/

Sumit Katiyar v. State of U.P.

Case brief

What is this about?

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Sumit Katiyar v. State of U.P.

Case brief

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