High Court

Judgment

1. The learned counsel for the applicant has filed a rejoinder-affidavit in reply to the counter-affidavit filed by the informant, which is taken on record.

2. Heard Sri Nadeem Murtaza, learned counsel for the applicant, Sri Alok Kumar Tiwari, learned A.G.A. and Sri Rama Pati Shukla, learned counsel for the informant.

3. This application has been filed seeking release of the applicant on bail in F.I.R./Case Crime No. 92 of 2024 under Sections 103(1) and 61(2), B.N.S., 2023, P.S. Bewana, District Ambedkar Nagar.

4. The aforesaid case has been registered on the basis of an F.I.R. lodged at 7:10 hrs. on 06.07.2024 against the applicant and one Sunil Yadav, stating that the informant’s uncle Vinod Upadhyaya used to reside at Nibhiyawan, P.S. Akbarpur, District Ambadkar Nagar. He used to go around places in connection with his work even during night time. He went out of his village at about 11.00 p.m. in connection with some work. He made a phone call to the informant at 11.43 p.m. and told that he was going to the house of the applicant. In case something happens, the informant should keep awake. The informant made a phone call to his uncle after some time, but the call was not accepted and thereafter the phone got switched off. When the phone could not get connected even in the morning, the informant made a phone call to the applicant, whereupon the applicant told that he had gone to Kanpur with a bus. The informant asked the applicant to make inquiries from his brother, whereupon the applicant told him that his brother Sunil Yadav is also away from his home since night. The informant further stated that he believed that his uncle Vinod Upadhyaya had been killed by the accused persons.

5. Interestingly, before expressing the belief that the informant’s uncle Vinod Upadhyaya had been killed by the named accused persons, he did not make any mention that he had come to know about the death or murder of his uncle and the manner and time of acquiring this knowledge.

6. The inquest proceedings started in Village Sangiya Narayanpur prescisely at 7:10 hrs. on 06.07.2024. The inquest report mentions that information of finding the dead-body was given to the Police by Village Pradhan Ashutosh Singh. The dead-body was found on a roadside in Village Sangiya Narayanpur. The motorcycle was lying on the dead-body.

7. The postmortem examination report mentions 2 gunshot entry wounds on head of the deceased and an exit wound. The cause of death has

been opined to be ‘head injury due to projectile of the firearm’.

1. In the statement of the informant recorded under Section 180, B.N.S.S. he stated that after lodging of the F.I.R. he acquired knowledge of involvement of some other persons also in commission of the offence. After reiterating the F.I.R. version, the informant further stated that when he was going towards the applicant’s village searching for his uncle, on the way he saw a crowd and upon stopping he found the dead-body of his uncle lying beneath his motorcycle. The Police had reached the spot. The informant stated that his uncle had been killed by Sunil, Yashwant (the applicant) and Dilip, all as they were not in a position to refund the money taken from him and they were threatening the informant’s uncle for the past few days that he should not insult them by demanding repayment of amount repetitively. The informant also stated that all five persons had abused his uncle on a road near his uncle’s house. His uncle had stated that he will recover the amount in any situation and he would come to their house to recover the money. Several persons had mediated and tried to resolve the dispute. The informant did not know as to when his uncle went to the accused persons’ village. He got information of the incident in the morning and he went to the Police Station, but in a hurry he lodged the F.I.R. against Sunil Yadav and Yashwant Yadav only, whereas all five persons were involved in commission of the offence.

8. The deceased person’s driver Sonu Gautam also supported the F.I.R. version.

9. The Police claims that all five persons were intercepted while they were standing on a service lane near Maharua Turn. One person escaped in a White Baleno Car. Other four persons, including the applicant, were arrested. Rs. 900.00 are said to have been recovered from the applicant. A pistol and a live cartridge was recovered from co-accused Sunil, a chopper was recovered from co-accused Anup and Rs. 1070.00 are said to have been recovered from Ravi Yadav. The i- 20 car bearing registration No. UP-45-AQ-5510 was taken into custody.

10. In his custodial statement recorded by the Investigating Officer, the applicant declined his involvement in commission of the offence and he stated that as the deceased was insulting him, he had asked his brother to eliminate the deceased. He stated that the person who had escaped in white Baleno Car was his younger brother Dilip Yadav.

11. In the affidavit filed in support of the application it has been stated that the applicant is innocent. He has been falsely implicated in the present case. The applicant’s involvement in three other cases has been disclosed in para-23 of the affidavit filed in support of the bail application, which is as follows: - Sl. No. 1

2. Details of cases

3. Status of cases Case Crime No. 133 of 2020 u/S 147,323,504,506, I.P.C., P.S. Mahruwa, District Ambedkar Nagar. The applicant is on bail. 2 3 Case Crime No. 119 of 2023 u/S 323,504,506, I.P.C., P.S. Mahruwa, District Ambedkar Nagar. Case Crime No. 92 of 2023 u/S 110-G Cr.P.C. P.S. Mahruwa, District Ambedkar Nagar. This case is punishable upto seven years and till date neither any notice nor any summon has been served dupon the applicant. This case has been ended.

13. The State has filed a counter-affidavit opposing the bail application annexing therewith copies of material collected during investigation and a copy of the charge-sheet dated 20.07.2024.

14. The relevant extract of case-diary annexed with the counter-affidavit shows that the investigating officer has recorded that from a perusal of the call detail records of the deceased and the accused persons, their location has been found to be near the place of the incident. The call detail records of the accused persons mentioned that the applicant had made 4 phone calls to the deceased on 05.07.2024 between 10:36 a.m. and 16:54 p.m. and the deceased had made 3 phone calls to the applicant.

15. The call detail recordd of the co-accused Ravi establish that the applicant had made 9 phone calls to him, whereas Ravi had made 5 calls to the applicant on 05.07.2024 between 10:00 a.m. and 18:05 p.m.

16. Call details of the deceased disclose that a total of 4 outgoing and 3 incoming were made between him and the applicant on 05.07.2024 between 10:36 a.m. - 16:54 p.m.

17. No mobile conversation took place between the deceased and the co- accused Ravi.

18. The co-accused Ravi had 14 conversations with the applicant between 10:00 a.m. and 18:05 p.m. on 5.7.2024.

19. Apparently, no conversation took place between the deceased and any of the accused persons after 18:05 p.m. As per the F.I.R., the deceased was alive at least till 11:43 p.m., when he had made a phone call to the informant. Therefore, the call detail records annexed with the counter affidavit filed by the State do not make any mention of the location of any of the accused persons at or near the time of incident.

20. A rejoinder-affidavit has been filed on behalf of the applicant annexing therewith copies of the statements of four prosecution witnesses recorded by the trial court and the examination-in-chief of P.W.5. The cross-examination of P.W.5 was continuing till preparation of the rejoinder affidavit and the complete statement of P.W.5 has been filed alongwith a supplementary counter affidavit filed by the informant in the bails application of co accused Ravi Yadav.

21. In his cross-examination, the P.W-1 (the informant) stated that after he had lodged the F.I.R. against Yashwant Yadav (the applicant) and Sunil Yadav, he got information about involvement of other accused persons within half an hour since lodging of the F.I.R. This information was not given to him by any person, but he acquired this information by himself. He stated that the deceased did not possess any license for lending money. He further stated that the accused persons had not repaid any amount to the deceased.

22. The widow of the deceased has been examined as P.W-3 and she stated that the accused persons had borrowed more than Rs. 50 lacs from her husband and they were not refunding the money. They had given a cheque for an amount exceeding Rs. 50 lacs, but they had asked her husband not to present the cheque in the Bank. The cheque was presented in the Bank and it was dishonored. She stated that she has filed a complaint under Section 138 of the Negotiable Instruments Act.

23. In her cross-examination, PW-3 stated that she could not tell the exact amount lent by her husband to the accused persons and she could not even tell any other particulars regarding the amount lent. Two cheques for Rs. 9 lacs and 8 lacs drawn by the applicant Yashwant in favour of the deceased on 04.07.2024 have been annexed with the counter- affidavit filed by the informant. Both these cheques were presented in the Bank on 10.09.2024.

24. The learned counsel for the informant has vehemently opposed the bail application and he has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Dablu Kujur v. the State of Jharkhand: (2024) 3 SCR 614, in which the Hon’ble Supreme Court has observed as under: - “3. During the course of arguments, it was aprised to the Court that the trial is at the fag end and almost all the witnesses have been examined by the prosecution except one witness.

4. In view of the above, we are not inclined to release the appellant on bail, more particularly, when the trial is at the fag end.”

25. While relying upon a precedent, only the ratio of law laid down in the precedent is binding. Where no principle of law has been considered or laid down and merely a plea for grant of bail has been decided, the order granting or rejecting a bail cannot be treated as a precedent.

26. The Hon’ble Supreme Court has held that where the fundamental right of liberty is involved, the court should consider and decide the plea for release of an accused person on bail, of course, after taking into consideration the entire relevant facts and circumstances of the case and the material available on record. There is no general principle of universal application that the bail application of an accused person cannot be considered after almost all the prosecution witnesses have been examined. In the present case, the charge-sheet mentions as many as 29 prosecution witnesses and merely 5 prosecution witnesses have been examined till date. Therefore, I am of the considered view that the bail application of the accused persons cannot be rejected merely on the ground that 5 prosecution witnesses have been examined.

25. At this stage the learned counsel for the informant made a request that his statement being made at bar be recorded by this Court that only six prosecution witnesses will be examined and no other witness will be examined by the prosecution. However, in response to a specific query put by the Court to the learned A.G.A., he stated that he has no instructions that the prosecution will not examine any more witnesses.

26. Having considered the aforesaid facts and circumstances of the case, what prima facie appears from the material available before the Court at this stage is that the F.I.R. was lodged in Police Station Bewana, District Ambedkar Nagar on 06.07.2024 at about 07:10 AM. It is strange that the inquest proceedings also started precisely at the same time in village Sanghia Narayanpur, which is about 7 KM away from the Police Station. The informant has stated in the F.I.R. that his Uncle had gone out of the village at 11:00 p.m. and he had made a telephone call to him at 11:43 p.m. and had told that he was going to the applicant’s house and the informant should stay awake in case something happens. In the morning the call made to the Uncle could not get through and when the informant made a phone call to the applicant Yashwant, he told that he had gone to Kanpur taking a bus. When the informant asked the applicant to make enquiries from his brother, he stated that he was also away from his home since night. Merely from the aforesaid circumstances, the informant drew an inference that his uncle had been killed by these persons. The F.I.R. does not make any mention of the fact that the informant’s uncle has in fact died and that he had come to know about death of his uncle and the source, manner and time of acquiring this information.

27. The learned counsel for the informant has submitted that the F.I.R. need not be an encyclopedia of entire facts and circumstances relating to the case.

28. There can be no dispute against the aforesaid proposition, but when an F.I.R. is registered regarding a murder, the fact that the deceased had in fact died, is the most relevant fact and it cannot be said that non- mention of the factum of death of the deceased merely amounts to non-writing the F.I.R. as an encyclopedia. The F.I.R. does not make any mention that the deceased had lent any money to any of the accused persons and that they were threatening the deceased person. The widow of the deceased has stated during her examination before the trial Court that the accused persons had taken a sum exceeding Rs.50 lacs, but she could not tell the exact amount or any other particulars regarding the amount lent by her husband. There is no disclosure of the fact that the accused persons had already given four cheques for amounts aggregating to Rs. 33.5 lacs to the deceased on

04.07.2024 i.e. more than one day prior to the incident. Although the deceased is said to be pressing hard for recovery of the amount lent by him, the cheques given by the accused persons to the deceased on

04.07.2024, were not presented to the bank till 10.09.2024.

29. The learned counsel for the informant has submitted that a Baleno Car was seen in a CCTV Camera installed in Panchayat Bhawan. However, no Baleno Car has been recovered by the Investigating Officer. There is no mention of the registration number of the Baleno Car and the Baleno Car could not be connected with any of the accused persons.

30. Without making any further observations, which may affect the outcome of the trial, this Court is of the considered view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

31. Accordingly, the bail application is allowed.

32. Let the applicant- Yashwant Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial court, unless his appearance is exempted by the learned trial court. Order Date: 16.04.2025 A.Nigam (Subhash Vidyarthi, J.)

been opined to be ‘head injury due to projectile of the firearm’.

1. In the statement of the informant recorded under Section 180, B.N.S.S. he stated that after lodging of the F.I.R. he acquired knowledge of involvement of some other persons also in commission of the offence. After reiterating the F.I.R. version, the informant further stated that when he was going towards the applicant’s village searching for his uncle, on the way he saw a crowd and upon stopping he found the dead-body of his uncle lying beneath his motorcycle. The Police had reached the spot. The informant stated that his uncle had been killed by Sunil, Yashwant (the applicant) and Dilip, all as they were not in a position to refund the money taken from him and they were threatening the informant’s uncle for the past few days that he should not insult them by demanding repayment of amount repetitively. The informant also stated that all five persons had abused his uncle on a road near his uncle’s house. His uncle had stated that he will recover the amount in any situation and he would come to their house to recover the money. Several persons had mediated and tried to resolve the dispute. The informant did not know as to when his uncle went to the accused persons’ village. He got information of the incident in the morning and he went to the Police Station, but in a hurry he lodged the F.I.R. against Sunil Yadav and Yashwant Yadav only, whereas all five persons were involved in commission of the offence.

8. The deceased person’s driver Sonu Gautam also supported the F.I.R. version.

9. The Police claims that all five persons were intercepted while they were standing on a service lane near Maharua Turn. One person escaped in a White Baleno Car. Other four persons, including the applicant, were arrested. Rs. 900.00 are said to have been recovered from the applicant. A pistol and a live cartridge was recovered from co-accused Sunil, a chopper was recovered from co-accused Anup and Rs. 1070.00 are said to have been recovered from Ravi Yadav. The i- 20 car bearing registration No. UP-45-AQ-5510 was taken into custody.

10. In his custodial statement recorded by the Investigating Officer, the applicant declined his involvement in commission of the offence and he stated that as the deceased was insulting him, he had asked his brother to eliminate the deceased. He stated that the person who had escaped in white Baleno Car was his younger brother Dilip Yadav.

11. In the affidavit filed in support of the application it has been stated that the applicant is innocent. He has been falsely implicated in the present case. The applicant’s involvement in three other cases has been disclosed in para-23 of the affidavit filed in support of the bail application, which is as follows: - Sl. No. 1

2. Details of cases

3. Status of cases Case Crime No. 133 of 2020 u/S 147,323,504,506, I.P.C., P.S. Mahruwa, District Ambedkar Nagar. The applicant is on bail. 2 3 Case Crime No. 119 of 2023 u/S 323,504,506, I.P.C., P.S. Mahruwa, District Ambedkar Nagar. Case Crime No. 92 of 2023 u/S 110-G Cr.P.C. P.S. Mahruwa, District Ambedkar Nagar. This case is punishable upto seven years and till date neither any notice nor any summon has been served dupon the applicant. This case has been ended.

13. The State has filed a counter-affidavit opposing the bail application annexing therewith copies of material collected during investigation and a copy of the charge-sheet dated 20.07.2024.

14. The relevant extract of case-diary annexed with the counter-affidavit shows that the investigating officer has recorded that from a perusal of the call detail records of the deceased and the accused persons, their location has been found to be near the place of the incident. The call detail records of the accused persons mentioned that the applicant had made 4 phone calls to the deceased on 05.07.2024 between 10:36 a.m. and 16:54 p.m. and the deceased had made 3 phone calls to the applicant.

15. The call detail recordd of the co-accused Ravi establish that the applicant had made 9 phone calls to him, whereas Ravi had made 5 calls to the applicant on 05.07.2024 between 10:00 a.m. and 18:05 p.m.

16. Call details of the deceased disclose that a total of 4 outgoing and 3 incoming were made between him and the applicant on 05.07.2024 between 10:36 a.m. - 16:54 p.m.

17. No mobile conversation took place between the deceased and the co- accused Ravi.

18. The co-accused Ravi had 14 conversations with the applicant between 10:00 a.m. and 18:05 p.m. on 5.7.2024.

19. Apparently, no conversation took place between the deceased and any of the accused persons after 18:05 p.m. As per the F.I.R., the deceased was alive at least till 11:43 p.m., when he had made a phone call to the informant. Therefore, the call detail records annexed with the counter affidavit filed by the State do not make any mention of the location of any of the accused persons at or near the time of incident.

20. A rejoinder-affidavit has been filed on behalf of the applicant annexing therewith copies of the statements of four prosecution witnesses recorded by the trial court and the examination-in-chief of P.W.5. The cross-examination of P.W.5 was continuing till preparation of the rejoinder affidavit and the complete statement of P.W.5 has been filed alongwith a supplementary counter affidavit filed by the informant in the bails application of co accused Ravi Yadav.

21. In his cross-examination, the P.W-1 (the informant) stated that after he had lodged the F.I.R. against Yashwant Yadav (the applicant) and Sunil Yadav, he got information about involvement of other accused persons within half an hour since lodging of the F.I.R. This information was not given to him by any person, but he acquired this information by himself. He stated that the deceased did not possess any license for lending money. He further stated that the accused persons had not repaid any amount to the deceased.

22. The widow of the deceased has been examined as P.W-3 and she stated that the accused persons had borrowed more than Rs. 50 lacs from her husband and they were not refunding the money. They had given a cheque for an amount exceeding Rs. 50 lacs, but they had asked her husband not to present the cheque in the Bank. The cheque was presented in the Bank and it was dishonored. She stated that she has filed a complaint under Section 138 of the Negotiable Instruments Act.

23. In her cross-examination, PW-3 stated that she could not tell the exact amount lent by her husband to the accused persons and she could not even tell any other particulars regarding the amount lent. Two cheques for Rs. 9 lacs and 8 lacs drawn by the applicant Yashwant in favour of the deceased on 04.07.2024 have been annexed with the counter- affidavit filed by the informant. Both these cheques were presented in the Bank on 10.09.2024.

24. The learned counsel for the informant has vehemently opposed the bail application and he has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Dablu Kujur v. the State of Jharkhand: (2024) 3 SCR 614, in which the Hon’ble Supreme Court has observed as under: - “3. During the course of arguments, it was aprised to the Court that the trial is at the fag end and almost all the witnesses have been examined by the prosecution except one witness.

4. In view of the above, we are not inclined to release the appellant on bail, more particularly, when the trial is at the fag end.”

25. While relying upon a precedent, only the ratio of law laid down in the precedent is binding. Where no principle of law has been considered or laid down and merely a plea for grant of bail has been decided, the order granting or rejecting a bail cannot be treated as a precedent.

26. The Hon’ble Supreme Court has held that where the fundamental right of liberty is involved, the court should consider and decide the plea for release of an accused person on bail, of course, after taking into consideration the entire relevant facts and circumstances of the case and the material available on record. There is no general principle of universal application that the bail application of an accused person cannot be considered after almost all the prosecution witnesses have been examined. In the present case, the charge-sheet mentions as many as 29 prosecution witnesses and merely 5 prosecution witnesses have been examined till date. Therefore, I am of the considered view that the bail application of the accused persons cannot be rejected merely on the ground that 5 prosecution witnesses have been examined.

25. At this stage the learned counsel for the informant made a request that his statement being made at bar be recorded by this Court that only six prosecution witnesses will be examined and no other witness will be examined by the prosecution. However, in response to a specific query put by the Court to the learned A.G.A., he stated that he has no instructions that the prosecution will not examine any more witnesses.

26. Having considered the aforesaid facts and circumstances of the case, what prima facie appears from the material available before the Court at this stage is that the F.I.R. was lodged in Police Station Bewana, District Ambedkar Nagar on 06.07.2024 at about 07:10 AM. It is strange that the inquest proceedings also started precisely at the same time in village Sanghia Narayanpur, which is about 7 KM away from the Police Station. The informant has stated in the F.I.R. that his Uncle had gone out of the village at 11:00 p.m. and he had made a telephone call to him at 11:43 p.m. and had told that he was going to the applicant’s house and the informant should stay awake in case something happens. In the morning the call made to the Uncle could not get through and when the informant made a phone call to the applicant Yashwant, he told that he had gone to Kanpur taking a bus. When the informant asked the applicant to make enquiries from his brother, he stated that he was also away from his home since night. Merely from the aforesaid circumstances, the informant drew an inference that his uncle had been killed by these persons. The F.I.R. does not make any mention of the fact that the informant’s uncle has in fact died and that he had come to know about death of his uncle and the source, manner and time of acquiring this information.

27. The learned counsel for the informant has submitted that the F.I.R. need not be an encyclopedia of entire facts and circumstances relating to the case.

28. There can be no dispute against the aforesaid proposition, but when an F.I.R. is registered regarding a murder, the fact that the deceased had in fact died, is the most relevant fact and it cannot be said that non- mention of the factum of death of the deceased merely amounts to non-writing the F.I.R. as an encyclopedia. The F.I.R. does not make any mention that the deceased had lent any money to any of the accused persons and that they were threatening the deceased person. The widow of the deceased has stated during her examination before the trial Court that the accused persons had taken a sum exceeding Rs.50 lacs, but she could not tell the exact amount or any other particulars regarding the amount lent by her husband. There is no disclosure of the fact that the accused persons had already given four cheques for amounts aggregating to Rs. 33.5 lacs to the deceased on

04.07.2024 i.e. more than one day prior to the incident. Although the deceased is said to be pressing hard for recovery of the amount lent by him, the cheques given by the accused persons to the deceased on

04.07.2024, were not presented to the bank till 10.09.2024.

29. The learned counsel for the informant has submitted that a Baleno Car was seen in a CCTV Camera installed in Panchayat Bhawan. However, no Baleno Car has been recovered by the Investigating Officer. There is no mention of the registration number of the Baleno Car and the Baleno Car could not be connected with any of the accused persons.

30. Without making any further observations, which may affect the outcome of the trial, this Court is of the considered view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

31. Accordingly, the bail application is allowed.

32. Let the applicant- Yashwant Yadav be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial court, unless his appearance is exempted by the learned trial court. Order Date: 16.04.2025 A.Nigam (Subhash Vidyarthi, J.)