Rajeev Misra,J
1. Heard Mr. Manoj Pandey, the learned counsel for applicantMunnu@ Avinash Dubey, Mr. Rakesh Dubey, the learned counsel for applicant-Ashish Singh@ Saurabh, the learned A.G.A. for State and Mr. Khalid Mahmood Advocate holding brief of Mr. Abdul Majeed, the learned counsel representing first informant.
2. Perused the record.
3. These applications for bail have been filed by applicantsMunnu@ Avinash Dubey and Ashish Singh@ Saurabh seeking their enlargement on bail in Case Crime No. 122 of 2022 under Sections 302, 382, 411 I.P.C., Police Station-Machlishahar, District-Jaunpur, during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred in between 02.06.2023 to 03.06.2023, a delayed F.I.R. dated 04.06.2023 was lodged by first informant- Mohd. Fajeel and was registered as Case Crime No. 122 of 2022 under Section 382 I.P.C., Police Station-Machalishar, District-Jaunpur, In the aforesaid F.I.R., an unknown person has been arraigned as solitary accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that brother of the first informant went missing at around 8.00 PM on 02.06.2023. The first informant and others made search of the missing person. Then on suspicion, the lock of the door of the room of the brother of first informant where he rside and was locked from outside was broken and then it was discovered that brother of first informant is lying inside in a stage of unconsciousness.
6. Immediately the injured was taken to the hospital but was referred to Trauma Center, Varanasi on accoun of his critical condition.
7. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. During course of investigation, the case was initially altered to Section 307 I.P.C. However, the statement of the injured was not recorded by the Investigating Officer. Unfortunately, the injured succumbed to the injury sustained by him. Resultantly, the case was converted into Section 302 I.P.C.
8. After the death of the deceased, inquest (Panchayatnama) of the body of deceased was conducted on 21.06.2023. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterised as homicidal. Subsequent to above, post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, the cause of death of deceased was comma as a result of ante-mortem head injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
"i Surgical stitch wound 30cm with 28 stitches on right side of head extending to malelous right ear pinna 11cm above from root of nose.
ii. Surgical fresh bleed wound on front of nose 2 cm in diameter, 4 cm above from sternal notch.
iii. Surgical stitch wound 5 cm with 4 stitches, over right side of chest, 3cm. below midclavicular line.
iv. On opening skull contusion present all over scull with surgical ......... , parietal, temporal bone.
v. On opening skull subdural and extradural haematoma present, brain lacerated, membrane lacerated.
9. During pendency of investigation, Investigating Officer examined first informant under Section 161 Cr.P.C. for the first time on 04.06.2023. However, first informant in his statement did not mention the names of present applicants in the crime in question. The second statement of first informant under Section 161 Cr.P.C was recorded on 20.06.2023 and for the first time first informant expressed suspicion against present applicants as well as another person namely Himansu. Ultimately, third statement of first informant under Section 161 Cr.P.C. was recorded on 23.06.2023 in which complicity of three persons i.e. applicants and Himansu was alleged in the crime in question.
10. On the basis of above and the statements of other witnesses examined under Section 161 Cr.P.C, Investigating Officer arrested applicant Ashish Singh @ Saurav on 20.06.2023 whereas applicant-Munnu @ Avinash Dubey surrendered before court below on 17.07.2023. On the pointing of Ashish Singh @ Saurav recovery of cash to the tune of Rs.1500/- and one mobile phone were recovered. It is apposite to mention here that the said mobile phone did not belong to the deceased. Thereafter on the pointing of applicant Munnu @ Avinash Dubey, a sme of Rs.1500/-, Adhar Card and Bank Pass Book of the deceased were recovered. The recovery of other articles other than cash was made from an open place after expiry of one month and 22 days i.e. below a culvert.
11. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicants and Himansu is fully established in the crime in question. Accordingly, he submitted the charge sheet dated 12.08.2023 whereby co-accused Himansu and applicants have been charge sheeted under Sections 302, 382, 411 I.P.C.
12. Learned counsel for applicants contend that applicants are innocent. Applicants are not named in the F.I.R.. Though the applicants are charge-sheeted accused yet they are liable to be enlarged on bail. As per prosecution story as unfolded in the F.I.R. he submits that present case is a case of circumstantial evidence. As such, there is no eye-witness of the occurrence. Complicity of an accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by Apex Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622 [LQ/SC/1984/171] . However, upto this stage, none of the parameters provided in aforesaid judgement are satisfied against present applicants. There is no evidence of last seen against applicants. The first informant is not an eye witness of the occurrence, therefore his testimony is only based upon suspicion. Upto this stage, no strong motive has emerged against applicants to commit the crime either. Upto this stage following incriminating circumstance has emerged against applicants:
i. Third statement of first informant recorded by Investigating Officer on 23.06.2023.
ii. Recovery of cash and other article i.e. Bank pass-book and Adhar Card.
iii. Confessional statements of accused themselves.
13. Learned counsel for applicants submits that except for aforesaid three incriminating circumstance no other circumstance has emerged on the basis of which no other hypothesis but the criminality of applicants in the crime in question can be inferred. They submit that aforesaid recoveries have been made after expiry of a period of one month and 22 days in the case of applicant Ashish Singh @ Saurav and after substantial period in respect of applicant Munnu @ Avinash Debey. As the articles were recovered from open place i.e. below the culvert. There is no independent witness of the recovery. As such recovery is doubtful. Same is implanted. As such the same cannot be relied upon for inferring the guilt of applicant in the crime in question. As such, the same is not worthy of reliance. With regard to the confessional statement of accused/co-accused, the leaned counsel for applicant submits that the same is not admissible in evidence at this stage. It is a very week type of evidence. Neither any discovery was made by Investigating Officer on the basis of the statements of accused/applicants recorded while they were in custody nor any such article was recovered on the basis of same. Therefore, the same can be relied upon against applicants in terms of Section 27 of the Evidence Act. It is lastly contended that complicity of the present applicants has been expressed by first informant in his third statement before Investigating Officer. This is an adverse circumstance against the prosecution itself which remains unexplained upto this stage. As such the same not only creates a doubt but also a reasonable doubt. On the above premise, it is thus urged that criminality of applicant in the crime in question is not fully established in the crime in question , therefore, applicants are liable to be enlarged on bail.
14. Applicant-Munnu @ Avinash Dubey has criminal history of four cases but the same has been sufficiently explained in paragraph 35 of the affidavit filed in support of bail application of applicant Munnu @ Avinash Dubey. Applicant Ashish Singh @ Saurav is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant Munnu @ Avinash Dubey is in jail since 17.07.2023. As such he has undergone two and a half months of incarceration. Applicant Ashish @ Saurav is in jail since 20.06.2023. As such, he has undergone more than three and a half months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants therefore the entire evidence sought to relied upon by the prosecution against applicants stands crystalyzed. Upto this stage, no such incriminating circumstance has emerged against applicants necessitating custodial arrest of applicants during the pendency of trial. He therefore contends that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
15. Per contra, the learned A.G.A. for State and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since applicants are charge-sheeted accused therefore they do deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
16. Having heard the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that present case is a case of circumstantial evidence, therefore there is no eye witness of the occurrence, the complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of parameters laid down by Apex Court in Sharad Birdhi Chand Sarda (supra) referred to above, up to this stage, none of the parameters laid down by Apex Court in aforementioned judgement are satisfied against applicants, no strong motive has emerged against applicants for committing the crime in question, upto this stage three incriminating circumstance have emerged against applicants as detailed above but they by themselves are not sufficient to infer the guilt of present applicants, police report (charge-sheet) under Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet in spite of above, the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the course of trial, the judgment of Apex Court in Sumit Subhash Chandra Gangawal and another Vs. State113 of Maharashtra and another 2023 Live Law SC 373, the period of incarceration undergone by applicants, the explained criminal history of applicant Mannu @ Avinash Dubey, the clean antecedents of applicant Ashish Singh @ Saurabh, therefore irrespective of the objections raised by learned A.G.A. and the learned counsel for first informant in opposition of the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
17. Accordingly, present applications for bail is allowed.
18. Let the applicants-Munnu@ Avinash Dubey and Ashish Singh@ Saurabh involved in aforesaid case crime number be released on bail on their 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:-
(i) Applicants will not tamper with prosecution evidence.
(ii) Applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicants will not indulge in any unlawful activities.
(iv) Applicants will not misuse the liberty of bail in any manner whatsoever.
19. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send them to prison.
