Rajiv Kumar Vs State of U.P.

Neutral Citation No. - 2023:AHC:139710

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28491 of 2023

Applicant :- Rajiv Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Tej Om Prakash Gupta Counsel for Opposite Party :- G.A.,Sanjay Yadav

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Hon'ble Rajeev Misra,J.

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Heard Mr. Tej Om Prakash Gupta, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Yadav, the learned counsel representing first informant.

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Perused the record.

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This application for bail has been filed by applicant Rajiv Kumar, seeking his enlargement on bail in Case Crime No.18 of 2023, under Sections 302, 201, 120-B I.P.C., Police Station- Matsena, District- Firozabad during the pendency of trial.

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Record shows that in respect of an incident, which is alleged to have occurred on 08.02.2023, a prompt F.I.R. dated 11.02.2023 was lodged by first informant Man Singh (grandfather of the deceased Sachin) and was registered as Case Crime No.18 of 2023, under Sections 302, 201 I.P.C., Police Station- Matsena, District- Firozabad. In the aforesaid F.I.R., two persons namely; Chhotu @ Vivek and Rajiv Kumar (applicant herein) have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that on 06.02.2023 at around 4:30 p.m., Sachin the grandson of first informant Man Singh had gone to the tube-well of Chhotu @

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Vivek alongwith him from where, he went missing. The informant has every reason to believe that his grandson has been put to death by named accused Chhotu @ Vivek and Rajiv Kumar.

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It is apposite to mention here that after the grandson of the first informant went missing on 06.02.2023, a missing person report dated 08.02.2023 was lodged by the first informant. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Subsequently, named accused Chhotu @ Vivek and Rajiv Kumar (applicant herein) wee arrested. Named accused Chhotu @ Vivek in his inculpatory confessional statement before the police admitted of him having committed the crime. The role of the applicant was assigned to the effect that he had also helped co-accused Chhotu @ Vivek in disposing of the dead-body of the deceased. It is apposite to mention here that dead-body of the deceased has not yet been recovered. Consequently neither the inquest of the body of the deceased nor the post-mortem of the body of the deceased could have be conducted.

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Investigating Officer, during course of investigation examined certain witnesses under Section 161 Cr.P.C. namely; Man Singh, Raj Kishor Yadav S/o Bharat Singh Yadav, Krishna S/o Surendra Kumar Jhan, Aman Sharma @ Saurabh S/o Pradeep Sharma, Kumari Lalita D/o Shri Ram Niwas, Sachin S/o Shri Krishna, Munnesh Kumar S/o Arjun Singh, Ramdas S/o Bhagat Singh, SubInspector Shri Anand Yadav (P.N.O.) S/o Barelal Yadav, Head Constable Satendra Kumar (284) S/o Bacchu Singh, Constable Ajeet Kumar (1017) S/o Shri Ramasrey Yadav, Constable Ashu Singh (824) S/o Shri Jagan Singh, Head Constable Neeraj Kumar, Constable Sunil Kumar, Shri Shailendra Singh S/o Late Prathmesh Singh Chauhan, Inspector Shri Ravi Tyagi and Inspector Sher

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Singh S/o Shri Niranjan Lal, who have supported the prosecution story as unfolded in the F.I.R. to the effect that the deceased was last seen with Chhotu @ Vivek and Rajiv Kumar (applicant herein). The Investigating Officer further collected the Call Detail Reports (C.D.Rs.) of both the named accused and the deceased. The same also goes to show that all the three were together at the same place.

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On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted the chargesheet dated 09.05.2023.

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Learned counsel for applicant contends that present case is a case of circumstantial evidence, as such there is no eye-witness of the occurrence. It is next contended by the learned counsel for applicant that complicity of an accused, in a case based on circumstantial evidence has to be judged in the light of parameters laid by the Apex Court in Sharad Budhi Chand Sharda vs. State of Maharashtra; AIR 1984 S.C. 1622 . However, up to this stage, none of the parameters laid down by the Apex Court in aforementioned judgment are specified against the applicant for committing the crime in question. The complicity of applicant in the crime in question has emerged in the inculpatory confessional statement of the co-accused Chhotu @ Vivek. Accordingly, the learned counsel for applicant even though inculpatory confessional statement of an accused is not admissible in evidence, but even as per the said statement, the only role assigned to the applicant is that he helped the co-accused in disposing of the dead-body of the deceased. Call Detail Reports relied upon by the prosecution only goes to establish that the two accused and the deceased were

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together but that by itself does not establish the complicity of the applicant in the crime in question. Up to this stage, no strong motive against the applicant for committing the crime in question has emerged either. Even otherwise the applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit, except the present one. Applicant is in jail since 13.02.2023. As such, he has undergone more than two and a half months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge-sheet has already been submitted and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. Charge-sheet has been submitted under Sections 120-B and 201 I.P.C. against the applicant also. As per the inculpatory confessional statement of the co-accused Chhotu @ Vivek, which has not been contradicted by the learned counsel for applicant, the complicity of applicant in the crime in question is fully established. As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, Mr. Sanjay Yadav, the learned counsel representing first

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informant, upon perusal of material brought on record, evidence, nature, and gravity of offence as well as the complicity of applicant and considering the submissions urged by learned counsel for applicant as noted hereinabove but without making any comment on the merits of the case applicant has made out a case for bail.

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Accordingly the bail application is allowed .

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It is however, made clear that co-accused Chhotu @ Vivek shall not be entitled to claim parity with this order.

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Let the applicant Rajiv Kumar, be released on bail in aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following 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/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE

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DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 13.7.2023 Zafar

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Digitally signed by :- MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad

Rajiv Kumar v. State of U.P.

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Rajiv Kumar v. State of U.P.

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