High Court
Case Details
Court No. - 50 Case :- CRIMINAL APPEAL No. - 858 of 2023 Appellant :- Warish @ Nanka Respondent :- State of U.P. and Another Counsel for Appellant :- Sunita Chauhan,Dev Raj Singh Counsel for Respondent :- G.A.,Asad Ahmad,Subhash Chandra Tiwari Hon'ble Ram Manohar Narayan Mishra,J. Heard learned counsel for appellant, learned counsel for the informant, learned A.G.A. for the State-Respondent and perused the impugned judgement and order. This Criminal Appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed questioning the correctness of the order 10.01.2023 passed by Special Judge (SC/ST Act) Allahabad in Case Crime no. 610 of 2022, under Sections 302, 201, 34 IPC and 3(2)(V) SC/ST Act, P.S. Nawabganj, District Prayagraj whereby his prayer for bail has been rejected.
Legal Reasoning
It is contended by counsel for the appellant that according to prosecution version, informant Ranjeet lodged FIR that on 01.10.2022 at 13:03 hours wherein it is stated that informant belongs to Dalit labour class; his younger brother Vivek moved from home on 30.9.2022 at around 9:00 pm to have darshan of Durga Pooja but did not come back to home; on 01.10.2022 during course of his search, his motorcycle was found in shrubs of Sarpat; after conducting further search, he found his mutilated dead body by the side of railway track in a well; deceased's brother was receiving threats from unknown persons from mobile phone; FIR was lodged against unknown persons; however, during course of investigation, on 2.10.2022, name of co-accused Aman Maurya appeared in the statement of the informant, who stated that deceased was having intimacy with Shreya, daughter of Shambhunath and for that, her nephew Aman Maurya was having grudge with deceased Vivek and he had threatened him for life at many times; he had not seen any incident but he apprehends that due to love affairs between Shreya and deceased, family members of Shreya could have eliminated his brother; in the statement of Shreya recorded on 2.10.2022 in which she admitted intimacy with deceased Vivek and stated that on 30.9.2022 she visited Vivek near railway track as he called her to meet there; she went to near railway track on pretext to ease herself and when they were talking to each other at around 9:15 pm, her nephew Aman suddenly came there and caught Vivek by colour, he abused him and stated that he was in search of Vivek and caught him red handed; she escaped from the place thereafter and being scared she did not disclose this fact to any person; after two days her mother informed that dead body of Vivek has been found in a well; she lastly told that Ghanshyam and Waris are close friends of Aman Maurya and she disclosed mobile phone of Aman and Mohit. Learned counsel further submitted that complicity of accused appellant emerged in the confessional statement of co-accused Aman and there is no other material against him; confession of co-accused before the police is not admissible in piece of evidence; even neither informant nor Shreya have named appellant in their statement as person involved in this offence; nothing incriminating has been recovered from possession or pointing out of appellant; knife allegedly used in the offence, has been recovered on pointing out of accused Aman who is projected as main accused in the offence; appellant was not having any motive to commit murder of the deceased; case is based on circumstantial evidence as admittedly there is no eye witness of the incident; he is in jail since 4.10.2022. Per contra, learned AGA and counsel for the informant has vehemently opposed the prayer for bail and supported the impugned order and also submitted that complicity of appellant had emerged in the statement of co-accused Aman wherein it is stated that appellant and co-accused Mohit had dragged the deceased and co-accused Aman had assaulted the deceased by knife and thereafter all three persons had strangulated him and thrown the dead body in a well; they next submitted that in the post mortem report of the deceased as many as 18 injuries are found including lacerated and incised wound and cause of death has been mentioned as asphyxia due to ante mortem injury associated with coma Considering the fact that accused is not named in the FIR nor his complicity has been shown in the statement of informant as well as witness Shreya and nothing incriminating has been recovered from the possession and only material suggested against the appellant for complicity in the offence, is confessional statement of co- accused before the police and case of the appellant is distinguishable from main accused Aman Maurya and keeping in view the fact that the trial of the case is not likely to be concluded in near future, the appeal has substance and it is, accordingly, allowed. Impugned order dated 10.01.2023 is, hereby, set aside. Let appellant, Warish @ Nanka, be released on bail in aforesaid Case Crime on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions: (i). The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law; (ii). The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (iii). In case, the appellant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law. Order Date :- 10.4.2023 Dhirendra/ Digitally signed by :- DHIRENDRA KUMAR High Court of Judicature at Allahabad