Anjani Vs State of U.P. Thru. Prin. Secy. Home Lko. and Another

Neutral Citation No. - 2024:AHC-LKO:71533

Court No. - 16

Case :- CRIMINAL APPEAL No. - 2959 of 2024

Appellant :- Anjani Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another Counsel for Appellant :- R.N. Shukla,Kuldeep Dubey Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Counter affidavit, filed by the State, is taken on record. Learned counsel for the appellant states that he would not like to file rejoinder affidavit to the same.

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Heard learned counsel for the appellant, learned A.G.A. for the State as well as Shri Karunesh Singh, who has put in appearance and filed his vakalatnama/power on behalf of respondent no.2 and perused the record. Let the vakalatnama/power be taken on record.

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The instant criminal appeal under Section 14(A)(2) S.C./S.T. Act has been filed by the appellant- Anjani for grant of bail and to set-aside/quash the impugned order dated 30.08.2024 passed by the learned Special Judge,S.C./S.T. Act, Lucknow in Bail Application No.6676 of 2024, arising out of Case Crime No.10 of 2024, under Sections 302, 201, 34 I.P.C. read with Section 3(2)V of the S.C./S.T. Act, Police Station Mall, District Lucknow.

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Learned counsel for the appellant while pressing this appeal submits that the appellant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.

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It is further submitted that F.I.R. of this case has been lodged by the wife of the deceased (Himanshu) on 07.01.2024 naming the appellant and four other co-accused persons with the allegations that on 05.01.2024 at about 05:00pm. the deceased had gone to purchase some grocery and when he did not return till late in the night, villagers Sarvesh S/o Fekka and Ramlal S/o Laltu informed her that her husband has been taken by the appellant and co-accused Veerpal Yadav and Balram as well as by Deepak @ Shera and they were drinking liquor in a Bolero vehicle bearing Registration No.UP32NS0753 and on the next day dead body of the deceased was recovered from Manjhighat.

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It is also alleged in the F.I.R. that appellant and co-accused Veerpal Yadav were having illicit relations with the wife of the first cousin of the deceased namely Sarvesh and he was objecting them and it is on this account, they have done him to death.

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Highlighting the above facts, learned counsel for the appellant submits that the case of the prosecution is based on circumstantial evidence (last seen) as there is no prosecution witness, who claimed to have seen the accused persons committing the alleged crime and in the cases based on circumstantial evidence especially the cases based on 'last seen', there has to be a close proximity in time and place of last seen as well as time and place of death and the place where the dead body has been found.

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It is also submitted that to establish a case based on circumstantial evidence, the prosecution would be obliged to prove all the circumstances independently and cumulative effect of all these proved circumstances must be that it is only and only the accused persons, who have committed murder and none other than the accused persons and thus a strict poof is obliged to be discharged by the prosecution in cases based on circumstantial evidence.

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It is further submitted that in the F.I.R. there are two persons, who claimed to have seen the appellant and other co-accused persons in association with the deceased in a Bolero vehicle and the case of the prosecution as is evident from the statement of the wife of the deceased namely Khushboo is that the deceased was objecting to the illicit relations of the appellant and coaccused Veerpal Yadav with one Ram Kumari, who is the wife of first cousin of the deceased namely Sarvesh, however, except the statement of the wife of the deceased, there is no other iota of evidence collected by the investigating officer, which may reflect any such illicit relationship, there is no witness, who has claimed to have seen the aforesaid Ram Kumari and the appellant and another co-accused Veerpal Yadav together.

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While highlighting the statement of witnesses Sarvesh and Kshiteshwar Prasad, it is submitted that statement of these two witnesses would reveal that after some altercation had taken place in the Bolero vehicle, co-accused Balram had gone somewhere and had brought a dala (four wheeler) and all persons including deceased had gone somewhere on this dala, while confessional statement of the accused persons are in terms that the deceased had already been done to death in the Bolero vehicle, thus there appears significant contradiction in the story of the prosecution and the prosecution is itself not

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certain as to whether the deceased has been done to death in Bolero vehicle or he was taken in dala and was done to death somewhere-else .

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It is further submitted that no incriminating article is shown to have been recovered either from the pointing or possession of the appellant as the Bolero vehicle and dala is shown to have been recovered on the pointing of co-accused persons. It is vehemently submitted that recovery of a muffler, whereby the offence is shown to have been committed, would also not be of any significance as an unusual course of identification has been adopted by the investigating officer and the muffler, which was already sealed, is shown to have been opened in the police station and is stated to have been shown to the arrested accused persons, which could not be protected any known legal procedure.

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It is also submitted that Ram Kumari, with whom the illicit relationship of the appellant and co-accused Anjani is shown, as per statement of some prosecution witnesses including her mother, was residing with her mother in her maiyka at Village Lakhimpur and therefore, there is a major dent in the prosecution story with regard to the motive, which is also a circumstance.

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It is also submitted that appellant is in jail in this case since 09.01.2024 and he is not having any criminal antecedents. Charge sheet in this case has already been submitted and there is no apprehension that after being released on bail the appellant may flee from the course of law or may otherwise misuse the liberty. Identically placed co-accused, namely, Veerpal Yadav has already been enlarged on bail by this Bench by allowing Criminal Appeal No.1063 of 2024 filed on his behalf vide order dated 05.08.2024.

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Learned A.G.A., however, opposes the prayer of bail of the appellant on the ground that the appellant has committed an heinous offence and having regard to the material/evidence available against the appellant, he is not entitled to be released on bail.

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Shri Karunesh Singh, learned counsel for the respondent no.2 while drawing attention of this Court towards the statement of the wife of the deceased Khushboo as well as of Sarvesh and Kshiteshwar Prasad, vehemently submits that there is no contradiction in the story of the prosecution and if material, which has been collected by the investigating officer, is taken on its face, it would emerge that at first a fight had taken place inside the Bolero vehicle and thereafter, the

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deceased had joined accused persons in dala wherein he was done to death and his dead body was thrown in the river.

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It is also submitted that Lakhimpur, where Ram Kumari was residing after having a quarrel with her husband, is only three kilometers away from the village of the accused persons, thus having regard to the manner in which the offence has been committed, the appellant is not entitled to be released on bail.

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Having heard learned counsel for the parties and having perused the record, it is evident that in the F.I.R. the deceased is shown to be in the company of the appellant and other accused persons and it is shown that they were sitting in the Bolero vehicle and were drinking liquor. The dead body of the deceased has been found on the next day. Various discrepancies have been shown by learned counsel for the appellant in preparation of inquest report. The postmortem report of the deceased would reveal that the cause of death has been ascertained due to asphyxia as a result of strangulation and a ligature mark has also been found around the neck of the deceased. Admittedly, there is no witness, who claimed to have seen the accused persons committing offence and therefore, the case of the prosecution rests squarely on circumstantial evidence. The circumstance consists of 'motive' and 'last seen' and recovery of Bolero vehicle and dala on the pointing of the accused persons, in pursuance of their confessional statements. The defence as put by learned counsel for the appellant is that in cases pertaining to the circumstantial evidence, all the circumstances alleged must form a chain and this chain must be so strong, so as not to leave any doubt and the only inference of these circumstances, which could be drawn, must be that it is only and only the accused persons, who have committed crime and there was no room for any person to enter in between.

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Keeping in view all the facts and circumstances of the case especially the circumstance that the dead body of the deceased has been found on 06.01.2024 while he was 'last seen' with the accused persons on 05.01.2024 as also the statement of prosecution witnesses, who claimed to have seen the accused persons and the deceased together and which could only be appreciated by the trial court at the time of conclusion of trial, in the considered opinion of this Court, a case of bail is emerging in favour of the appellant moreso he is not having any criminal history and he is in jail in this case since 09.01.2024. Identically placed co-accused, namely, Veerpl Yadav has already been enlarged on bail by this Bench.

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Having regard to all the facts and circumstances of the case, I do not find as to why the facility of bail may not be extended

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to the appellant, therefore, in the considered opinion of this Court, the trial court has erred materially in passing the impugned order and same is liable to be set aside. Accordingly, the impugned order passed by the Special Judge is set-aside and the appeal filed by the appellant is allowed . Pending application(s) shall also stand disposed of.

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Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, let the appellant- Anjani, involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

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(i) The appellant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

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(ii) The appellant shall cooperate in the trial sincerely without seeking any adjournment.

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(iii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Identity, status and residence proof of the appellant and sureties be verified by the Court concerned before the bonds are accepted.

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Observations made herein-above by this court are only for the purpose of disposal of this appeal and shall not be construed as an expression on the merits of the case.

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Order Date :- 23.10.2024 MVS/-

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Digitally signed by :- MANOJ VIKRAM SINGH CHAUHAN High Court of Judicature at Allahabad, Lucknow Bench

Anjani v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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Anjani v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

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