Rakesh Kumar Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Neutral Citation No. - 2025:AHC-LKO:878

Court No. - 14

Case :- CRIMINAL APPEAL No. - 3133 of 2024

Appellant :- Rakesh Kumar Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Santosh Kumar Kanaujia Counsel for Respondent :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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The State with is counter affidavit has enclosed copy of the written communication sent by the police station concerned to the respondent no.2, however, even after personal service, respondent no.2 has chosen not to participate in this proceeding.

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Heard learned counsel for the appellant as well as learned A.G.A. for the State and perused the 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/ Rakesh Kumar for grant of bail and to set-aside/quash the impugned order dated 23.09.2024 passed by the learned Special Judge (S.C./S.T. Act)/Additional Sessions Judge, Lakhimpur Kheri in Bail Application No.387 of 2024, arising out of Case Crime No.284 of 2024, under Section 302 I.P.C. and Section 3(2)5 of the S.C./S.T. Act, Police Station Gola, District Lakhimpur Kheri, during trial.

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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 on the basis of suspicion and apprehension, charge sheet has been filed against the appellant and his wife and the only evidence, which is available against the appellant, is of some witnesses, who had stated that the deceased was having illicit relationship with the wife of the appellant and there are 1-2 witnesses, who had stated to have seen the appellant going towards his house and also the appellant and his wife Sunita were emerging out of the said house and also pertaining to finding of the dead body of the deceased in that house (in the house of the appellant).

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It is vehemently submitted that even if this story as cooked

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up by the prosecution is believed for the sake of argument, apart from confessional statement of the appellant and his wife Sunit, there is no evidence, which may connect the appellant with the alleged crime. It is also submitted that the confessional statement so far as the implication of the appellant is concerned in the alleged crime may not be proved against him in the court of law as the same has been obtained when he was in the custody of the police moreover recovery of a handle (bait) of a spade (fawda) is shown to have been affected on the pointing of the wife of the appellant Sunita and she has also been shown to have confessed that she has also participated in the assault given to the deceased.

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It is further highlighted that in the postmortem report of the deceased, only one injury of the nature of contusion has been found and having regard to the fact that the confessional statement of both the accused persons (appellant and his wife) are in terms that they both have assaulted the deceased, it could not be ascertained at this stage as to who from amongst the appellant and his wife, was the author of the injury beneath which occipital bone has also been found fractured.

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It is also submitted that the case of the prosecution is based on circumstantial evidence and the circumstances, which are being placed against the appellant, are highly disintegrated and are not forming a chain and no conclusion could be drawn that it is only and only the appellant and his wife, who has committed the murder of the deceased. Identically placed coaccused of the crime namely Sunita has already been released on bail by this Court vide order dated 10.09.2024 passed in Criminal Appeal No.2046 of 2024.

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It is also submitted that appellant is in jail in this case since 10.04.2024 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.

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Learned A.G.A., however, opposes the prayer of bail of the appellant on the ground that instant case is based on circumstantial evidence and the circumstances are that the dead body of the deceased has been found in the hut of the appellant, which was jointly possessed by the appellant and his wife and as also recovery of a handle of spade, which has been made on the joint pointing of the appellant and his wife, is itself sufficient to assume that there may not be any other person except the appellant, who has committed the offence as the deceased was having illicit relationship with his wife and

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having regard to the material/evidence available against the appellant, he is not entitled to be released on bail, but could not controvert the other factual submissions made by learned counsel for the appellant.

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Having heard learned counsel for the parties and having perused the record, it is evident that F.I.R. of this case has been lodged by the son of the deceased with delay of two days. It appears to be an admitted situation that only one injury of the nature of contusion has been found on the head of the deceased beneath with occipital bone was found fractured with laceration of membranes. In the F.I.R. this injury has been attributed to have been caused by the appellant, however, the informant is not an eye witness of the alleged crime. Thus the F.I.R. appears to have been lodged only on the basis of suspicion, however, the investigating officer during the course of investigation has recorded the statement of many witnesses, who had stated that the deceased was having illicit relationship with the wife of the appellant and also he was seen going to his house at the relevant day thereafter the dead body of the deceased was found in his hut. Charge-sheet in this case has already been filed. Appellant is in jail in this case since 10.04.2024 without any previous criminal history. Identically placed co-accused of the crime namely Sunita has already been released on bail by this Court. The presence of the appellant could be secured before the trial court by placing adequate conditions.

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Considering the fact that both the accused persons namely appellant and his wife Sunit have confessed before the investigating officer to have committed the offence and to have given blows with the handle of spade (fawda) on the head of the deceased and they both are shown to have absconded thereafter and the hut was jointly possessed by them and considering that identically placed co-accused of the crime namely Sunita has already been released on bail, without commenting anything further on the quality of circumstances placed against the appellant, in the considered opinion of this Court, the trial court has materially erred in passing the impugned order and the same is liable to be set aside. Accordingly the impugned order passed by the court below is set-aside and the appeal filed by the appellant is allowed . Pending application(s) 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- Rakesh Kumar involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like

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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 :- 7.1.2025

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Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

Rakesh Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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Rakesh Kumar v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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