Shankar Giri Sanjay Kumar v. State of Uttarakhand

Judgment

1. This is an application seeking regular bail under Section 439 of the Code of Criminal Procedure, 1973, in connection with FIR No. 20 of 2023, registered at Police Station Muni-ki-Reti, District Tehri Garhwal, under Sections 302 and 201 of the Indian Penal Code, 1860. The applicant has been in judicial custody since 12.03.2023.

2. The case arises from the recovery of a deceased male body, later identified as Ajay Shah, the son of the complainant, who had gone missing

on 04.03.2023. The FIR was registered on 10.03.2023 after the complainant and his family identified the deceased at AIIMS Rishikesh. The body bore signs of assault—both hands and feet were tied, and there was an injury on the back of the head. The cause of death, as per postmortem, was recorded as "asphyxia due to ante-mortem drowning."

3. Learned counsel for the applicant contends that the applicant was not named in the FIR and that his subsequent implication has surfaced only during the course of investigation, based on conjectural and circumstantial material. It is submitted that there is no eyewitness to the alleged occurrence, and the case against the applicant rests purely on circumstantial evidence, without any direct proof linking him to the homicidal act.

4. It is urged that the alleged recoveries of the deceased’s scooty, mobile phone, and ₹2,500 cash, purportedly made at the instance of the applicant, are unsupported by any independent public witnesses, as required under Section 100 CrPC. These recoveries, having been effected solely on police 1 disclosure, are therefore liable to be treated with caution and suspicion, particularly when made during police custody and not witnessed by any neutral party.

5. The applicant further points out the unexplained delay of six days in the registration of the FIR, despite the complainant allegedly having knowledge of his son's disappearance since 04.03.2023. Such unexplained delay seriously affects the credibility of the prosecution’s case and provides an opportunity for embellishment or fabrication of facts.

6. Further learned Counsel submits that the reliance placed by the State on call detail records (CDRs) and the "last seen" theoryis not conclusive.It is submitted that mere proximity of mobile location is not conclusive of involvement in the crime.

7. Further, the statement of Sahdev Yadav, who allegedly last saw the applicant and deceased together, is vague and fails to establish any incriminating circumstances beyond the fact that they were seen proceeding together toward Kailash Gate, a public place frequently visited by several individuals, including those engaged in substance use.

8. It is also emphasized that the deceased was a habitual substance abuser, and considering the postmortem findings which attribute the cause of death to "asphyxia due to ante-mortem drowning," without conclusive forensic linkage to homicidal violence, the possibility of accidental drowning cannot be ruled out altogether.

9. The applicant submits that he has no prior criminal antecedents, voluntarily surrendered before the Court, and has been in custody since

12.03.2023, completing more than one year of incarceration. It is pointed out that the trial is already underway, with a substantial number of prosecution witnesses examined. The applicant undertakes to abide by any condition that may be imposed by the Court and assures full cooperation with the trial proceedings.

10. On the other hand, learned A.G.A. for the State has strongly opposed the bail application. It is submitted that the present case involves the brutal killing of a young man, whose hands and legs were tied, and whose body was disposed of in the river. The applicant's presence at the crime scene is corroborated by call detail records (CDRs), which place his mobile location 2 in proximity with that of the deceased. The State further submits that on the basis of custodial interrogation, recoveries were affected including the deceased’s scooty, mobile phone, and cash amounting to ₹2,500, at the instance of the applicant.

11. The State contends that the cumulative evidentiary material— including the CDR analysis, postmortem findings, and recoveries—forms a coherent chain of circumstantial evidence, pointing toward the applicant's involvement. It is submitted that one Sahdev Yadav, in his statement under Section 180 BNSS, has stated that he saw the deceased and the present applicant going together toward Kailash Gate, which serves as the last seen circumstance preceding the death. The State argues that this, when read with the location match in CDRs, and the recovery of articles, makes out a prima facie case. It is further submitted that the gravity of the offence, the brutal manner in which the body was found, and the material collected justifies continued custody at this stage.

13. Heard learned Counsels for the Parties and perused the records. The court takes note of the fact that the allegations against the applicant concerns heinous offence punishable with life imprisonment or death. However, the case is based entirely on circumstantial evidence, as there is no direct eyewitness. The postmortem report records death due to drowning but also notes external injuries and binding of limbs, suggestive of foul play. Likewise, no scientific or forensic evidence has been brought on record thus far that links the applicant to the scene of the crime or the act of killing.

14. Firstly, the CDRs placing the applicant’s mobile in proximity to the deceased’s phone do not, by themselves, establish the applicant’s involvement in the crime. Mobile location data can only indicate the approximate presence of a person, not their actual participation in a crime.

15. The State has failed to produce any direct evidence, such as forensic or eyewitness testimony, that connects the applicant to the act of killing or the disposal of the body. The presence of the applicant near the deceased is consistent with a theory of accidental drowning, especially given the history of substance abuse by the deceased. 3

16. Secondly, the testimony of the “last seen” witness, Sahdev Yadav, places the applicant and the deceased together in the same general direction, but it does not establish a direct link to the homicide or explain the manner in which the deceased's life was taken. The mere fact that the applicant was seen walking in the same vicinity does not establish his involvement in a criminal act, particularly when the deceased frequented such areas for substance use.

17. In a case resting purely on circumstantial evidence, such gaps in the chain are not merely technical — they are fatal. In Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, it was emphasized that every link in the chain must be proved beyond reasonable doubt and the chain must be complete.

18. Furthermore, the alleged recoveries—of the deceased’s scooty, mobile phone, and cash—are far from conclusive. These items were recovered at the instance of the applicant, but there is no independent corroboration of these recoveries by a neutral witness. In the absence of such corroboration, the recoveries must be scrutinized carefully, as they are susceptible to being influenced by police interests, especially given the circumstances of the applicant’s custody and the lack of any direct forensic evidence

19. This Court is mindful that the matter is serious and the allegations, if proved, are grave. However, the Court also notes that the applicant has no criminal antecedents, has remained in custody for more than one year, and the trial is already underway with a substantial number of witnesses examined.

20. Hon’ble Supreme Court in State of Rajasthan v. Balchand @ Baliya, (1977) 4 SCC 308 has stated that, "The basic rule is bail, not jail. The principle is that pre-trial detention is not to punish the accused person but to ensure his presence at trial and prevent tampering with evidence or witnesses. The object of keeping a person in detention during trial is neither punitive nor preventive."

21. Accordingly, while refraining from any conclusive finding on the merits because the matter shall be tested during trialthis Court is of the considered view that continued incarceration of the applicant is not warranted at this stage. 4 ORDER The bail application is allowed. Let the applicant, Shankar Giri, be released on furnishing a personal bondof ₹50,000/- with two sureties of the like amount to the satisfaction of the court concerned. The applicant shall not tamper with the evidence, shall not attempt to influence any witness, and shall appear before the trial court on each date fixed. In case of breach of any of these conditions, the State shall be at liberty to move for cancellation of bail. It is clarified that the observations made herein are confined to the adjudication of this bail application and shall not be construed as an expression on the merits of the case. The learned trial court shall proceed independently and uninfluenced by any of the observations made herein. Dated:15.04.2025 NR/ (Ashish Naithani J.) 5