Allowed

Dilip Nath v. State of Rajasthan

Rajasthan HC9 May 2024CRLMB/837/2024

Case brief

AI extract

What is this about?

Hearing a bail application under CrPC 439 for murder, the High Court doubted the evidentiary value of a purported phone call transcript relied upon by the prosecution. Finding no material to link the applicant to the conspiracy, the Court granted bail despite his criminal antecedents. The order imposed a personal bond and two sureties.

What did the court decide?

Released on bail on a personal bond of Rs.50,000/- and two sureties of Rs.25,000/- each.

Dilip Nath Vs State of Rajasthan — Murder and Culpable Homicide | Rajasthan HC (2024)

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[2024:RJ-JD:20841]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Miscellaneous Bail Application No. 837/2024 Dilip Nath S/o Shri Narayan Nath, Aged About 35 Years, R/o Near Mahadev Mandir, Sisarma Ps Nai, Dist Udaipur.

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(Lodged In Central Jail, Udaipur)

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----Petitioner

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Versus

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State Of Rajasthan, Through PP

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----Respondent

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For Petitioner(s)	: Mr. Dheerendra Singh, Senior Advocate assisted by Ms. Priyanka Borana
For Respondent(s)	: Mr. S.K.Bhati, PP Mr. Avin Chhangani for the complainant
	Mr. Ravindra Charan, P.S. Bengu, District Chittorgarhpresent inperson

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JUSTICE DINESH MEHTA Order

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09/05/2024

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This application for bail has been preferred by the applicant under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) in connection with FIR No.68/2023 registered at Police Station Ambamata, District Udaipur for the offences under Sections 302, 120-B, 201 and 115 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Section 5/25 of the Arms Act.

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Mr. Dheerendra Singh, learned Senior Counsel submitted that the applicant has been falsely implicated and in spite of the admitted fact that during the relevant period, including the date of incident i.e. 06.02.2024, the applicant was behind the bars in Central Jail, Udaipur, he has been branded as a kingpin and

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enroped in the case with an allegation that it was the applicant, who had hatched the conspiracy to kill the deceased (Rajendra Parmar).

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Learned Senior Counsel submitted that the charge-sheet has been filed and as per the charge-sheet, the only incriminating evidence which has been relied upon is, purported transcript of the call which is said to have been taken place between the applicant and one Karan @ Kanhaiyalal.

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While maintaining that such audio/transcript cannot be used against the applicant, learned counsel argued that neither any mobile has been recovered from the conscious possession of applicant nor even a case under Section 42 of the Jail Ordinance has been registered against him.

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Learned Senior Counsel argued that the Police has created a concocted story which is not only difficult to be proved, but hard to be believed.

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Mr. Bhati, learned Public Prosecutor and Mr. Avin Chhangani, learned counsel for the complainant both vehemently opposed the bail application by contending that the transcript of the phone recording which has been placed on record clearly establishes applicant’s involvement and role in the offence.

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Taking the Court through the transcript, it was argued that the present applicant was in contact with the co-accused Karan @ Kanhaiyalal while clearly referring to shooters.

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It was also underscored that as many as 32 cases are pending against the applicant and argued that looking to his

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criminal antecedents, the applicant is not entitled for any sort of indulgence.

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Heard learned counsel for the parties and perused the material available on record. 10. As per the prosecution, it was the applicant who had hatched the conspiracy for murdering (Rajendra Parmar) and a consideration of Rs.30,00,000/- was agreed to be paid by the applicant to the shooters and his aids apart from giving a house and bearing cost of the marriage of the sister of the accused person.

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The incriminating evidence which the prosecution is relying is the purported transcript of call between the applicant and Karan @ Kanhaiyalal. It is to be noted that such transcript is a recording of telephonic conversation purportedly taken place between the applicant and the co-accused (Karan @ Kanhaiyalal) and the same was allegedly recorded by a Constables (Dharamveer and Anil Kumar), while the co-accused Karan @ Kanhaiyalal was talking to the applicant.

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While expressing its doubt about the evidentiary value and the veracity of such recording, this Court would observe that it is difficult nay impossible to believe that an accused person would keep his phone on speaker mode and allow others to hear such discussion even to the extent that a Police Constable present around him would record such conversation.

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That apart, even if the same is taken to be correct for the sake of arguments, admittedly no phone has been recovered from the applicant. Though some phones were recovered from the

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barrack in which the applicant is lodged (on 06.02.2023 & 12.02.2023), but investigation is pending and so far even chargesheet for the offence under Section 42 of the Jail Ordinance has not been filed against him. That apart, the Investigating Officer has though placed on record CDR (Call Detail Report), Location Report of the instrument and sim, but there is no material to connect the applicant with the phone and SIM No. 8302291064.

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If the transcript of the phone is looked into, it shows that the phone call took place at 04:13 pm; 08:13 pm and 08:19 pm on 10.02.2023 and 12:35 pm and 02:43 pm on 11.02.2023, etc. It looks unrealistic that a Constable will be able to create video recording of phone calls between the two persons in his mobile phone.

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On surfing through the transcript of voice recordings of the phone which is heavily relied upon rather sole basis, this Court was unable to find any thing objectionable or suggesting any thing which can directly link the applicant with the co-accused and bring home the allegation of hatching the conspiracy.

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What at the best has come on record on the basis of such transcript is “that the applicant had purportedly asked the coaccused (Karan @ Kanhaiyalal) to flee”. There is no transcript which relates to period prior to the murder (06.02.2024).

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So far as criminal antecedents are concerned, in the opinion of this Court, they become relevant when there is prima-facie evidence indicating towards involvement of an accused. In the present case, there is hardly any material or evidence pointing towards applicant’s involvement in the offence. Such being the

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position, in the opinion of this Court, criminal antecedents becomes redundant.

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It is pertinent to note that the Court interacted with the investigating officer and perused the record. So far as proceedings under Section 42 of the Jail Ordinance is concerned, it is informed that the investigation is still underway and the investigating officer has not come to a conclusion nor can it be said with certitude that the mobile phone and the sim which were found in applicant’s barrack were being used by the applicant with certitude.

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At the cost of repetition, it needs to be observed that unless it is established that the sim and phone was in possession of the applicant and was used by the applicant, he cannot be indicted and even if the best case of the prosecution is accepted and it is found that the phone and the sim which have been recovered in the jail on 12.02.2023 were being used by the applicant, then also, the transcript of the chat which has been submitted for perusal of the Court and part of the charge-sheet, nothing is suggestive or indicative of the fact that the applicant has hatched the conspiracy to murder Rajendra Parmar.

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For the reasons aforesaid, this Court is inclined to accept the bail application filed under Section 439 of the Cr.P.C. The applicant - Dilip Nath S/o Shri Narayan Nath arrested in connection with FIR No.68/2023 registered at Police Station Ambamata, District Udaipur shall be released on bail on his furnishing personal bond in the sum of Rs.50,000/- and two sureties of Rs.25,000/- each to the satisfaction of the trial Court.

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Applicant shall be required to appear before that Court on all dates of hearing and as and when called upon to do so.

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Needless to mention that the above observations made by this Court are on the basis of material so far produced before the Court. These are only prima-facie observations and the same shall however, not come in the way of the trial Court to take independent view of the matter, based on ocular and oral evidence, while finally deciding the case.

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(DINESH MEHTA),J

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93-Mak/-

Dilip Nath v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Dilip Nath v. State of Rajasthan

Case brief

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