Sumit Patel Vs State of U.P. and Anr.

Neutral Citation No. - 2023:AHC-LKO:49400

Court No. - 15

Case :- CRIMINAL APPEAL No. - 562 of 2021

Appellant :- Sumit Patel Respondent :- State Of U.P. And Anr. Counsel for Appellant :- Abrar Ali,Arun Sinha,Dinesh Kumar,Pranav Pandey,Siddhartha Sinha Counsel for Respondent :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard Sri Arun Sinha, learned counsel for the appellant, Sri Hari Shanker Bajpai, learned A.G.A.-I for the State and perused the entire record.

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This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 16.01.2021 passed by learned Special Judge, S.C./S.T. Act, Unnao in Sessions Trial No.541 of 2020, F.I.R. No.173 of 2020, under Sections 364, 302, 201 I.P.C. and Section 3(2)(5) of S.C./S.T. Act, Police Station Bighapur, District Unnao, whereby the bail application of the appellant has been rejected.

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This Court vide order dated 23.10.2021 issued notice to the opposite party no.2, however, service report was not available. Thereafter, again on 12.07.2023 notice was issued through the Chief Judicial Magistrate, Unnao and as per office report dated 06.07.2023, notice has been served upon opposite party no.2 personally, however, no counter affidavit is filed till date on his behalf nor any counsel is present to represent him. As such, it appears that opposite party no.2 is not interested to contest this case.

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Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed further in the matter.

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Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. The appellant was not present at the spot of alleged incident and his name was falsely taken. The first information report was lodged by the informant on 21.06.2021 alleging therein that on 19.06.2020 at about 06:00 PM, father of the complainant was present in his agricultural field, at that time, the accused appellant alongwith one Manoj, the co-

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accused, entered into the field of complainant and kidnapped his father and killed him as well as made the body disappeared. It is also stated in the F.I.R. that on 20.06.2020, a gumshudgi report was lodged.

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Learned counsel for the appellant further submits that in the gumshudgi report, name of the appellant was not mentioned. The F.I.R. has been lodged with ulterior motive. The name of the present appellant came into light in the confessional statement made before the police by co-accused, Manoj when he was arrested. The co-accused, Manoj has admitted this fact that he alongwith present appellant killed the father of the informant as he was having enmity with him. Learned counsel further submits that role of killing is only assigned to the coaccused, Manoj who killed the deceased with tamancha whereas the present appellant has been assigned the role of only catching and holding the deceased. Learned counsel for the appellant further submits that the recovery of tamancha is made on the pointing out of co-accused, Manoj whereas nothing incriminating material has been recovered from pointing out of the present appellant.

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Learned counsel for the appellant further submits that post mortem of the deceased was conducted on 22.06.2022 wherein following ante mortem injures were reported:-

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1. Fire arm entry wound size 1.2 cm x 1.2 cm circular shape present over right parental region of skull 6 cm above right ear.

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2. Fire arm exit wound 1.5 cm x 1.5 cm circular shape present over left parental region of skull 3 cm above left ear.

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Learned counsel for the appellant while placing reliance upon the judgment of Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 has further argued that no one had seen the commission of crime, there is no connecting link to indicate the involvement of appellant in the commission of crime, it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the appellant in the present crime.

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Learned counsel further submits that the appellant is in detention since 21.06.2020 and has already undergone a substantial period of detention. In support of his contention, learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

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"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

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Learned counsel for the appellant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

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"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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Learned counsel for the appellant further submits that ratio of law applicable in aforesaid cases is also applicable in the case of the present appellant, therefore, the appellant be enlarged on bail by this Court sympathetically.

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Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is in jail since 21.06.2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. There is no criminal history of the appellant.

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Learned A.G.A.-I opposed the prayer for bail, however, he is unable to dispute the contention raised by learned counsel for

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the appellant that the role of the appellant came in picture after the confessional statement of the co-accused, Manoj and only role of catching and holding the deceased has been assigned to the present appellant. He also does not dispute the fact that there is no eye witness of the alleged incident nor the informant saw the alleged incident and the informant has just repeated the version of F.I.R. in his statement. He further submits that there is a serious allegation of killing one person against the appellant. Thus, the appellant is not entitled to be enlarged on bail.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that in the gumshudgi report, name of the appellant was not mentioned whereas the name of present appellant came into light in the confessional statement made before the police by co-accused, Manoj when he was arrested and the role of killing is only assigned to the coaccused, Manoj who killed the deceased with tamancha whereas the present appellant has been assigned the role of only catching and holding the deceased and the recovery of tamancha is made on the pointing out of co-accused, Manoj whereas nothing has been recovered from pointing out of the present appellant and there is no connecting link to indicate the involvement of appellant in the commission of crime, it is a case of circumstantial evidence and the chain of evidence is totally broken, the police has also failed to complete the chain of evidence to connect the appellant in the present crime and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another ; (2018) 3 SCC 22 , Sharad Birdhichand Sarda Vs. State of Maharshtra (Supra), Kamal Vs. State of Haryana (Supra) and Takht Singh Vs. State of Madhya Pradesh (Supra), this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

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Accordingly, the appeal is allowed . Consequently, the impugned judgment and order dated 16.01.2021 passed by learned Special Judge, S.C./S.T. Act, Unnao in Sessions Trial No.541 of 2020, F.I.R. No.173 of 2020, under Sections 364, 302, 201 I.P.C. and Section 3(2)(5) of S.C./S.T. Act, Police Station Bighapur, District Unnao is hereby set aside and reversed.

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Let the appellant, Sumit Patel be released on bail in the Case Crime No.173 of 2020, under Sections 364, 302, 201 I.P.C. and Section 3(2)(5) of S.C./S.T. Act, Police Station Bighapur, District Unnao with the following conditions:-

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(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

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(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

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(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

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(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

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(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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(iii) The appellant shall cooperate with investigation /trial.

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(iv) The appellant 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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(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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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(vii) The appellant shall remain present, 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 appellant is

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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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(viii) The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

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Order Date :- 27.7.2023 Saurabh

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Digitally signed by :- SAURABH VERMA High Court of Judicature at Allahabad, Lucknow Bench

Sumit Patel v. State of U.P. and Anr.

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Sumit Patel v. State of U.P. and Anr.

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