Allahabad High Court
Case Details
Page No. 1 High Court of Judicature at Allahabad ************ Reserved Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22874 of 2022 Applicant :- Kamlesh Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Rakesh Dubey Counsel for Opposite Party :- G.A.,Ram Tiwari Hon'ble Rajan Roy,J. Heard Shri Rakesh Dubey, learned counsel for the applicant, Shri Ram Tiwari, learned counsel for the
Legal Reasoning
informant and Shri Sanjay Singh, learned A.G.A.-I for the State. The is an application under Section 439 Cr.P.C. by the accused Kamlesh Yadav Seeking enlargement on bail in Case Crime No. 169 of 2022 under Sections 302, 201 IPC, Police Station -Chakeri, District- Kanpur Nagar. The applicant is in jail since 22.02.2022. The prosecution case in nutshell is that on 19.02.2022 at 12.00 in the night the son of the informant was sleeping on the roof with his wife Sonam. An altercation ensued on the Mobile Phone between the deceased and the person to whom he was talking. His son came down while talking on Page No. 2 mobile phone as informed by his daughter-in-law. The dead body of his son was found on 19.02.2022 at about 6.00 a.m. behind his house in the plot of Sita Ram. He had injuries on the neck. According to the informant, some unknown persons had murdered his son. Subsequently, during investigation when the call details of the deceased were scrutinized, the name of the accused/ applicant came to light as the person who had talked to him on the fateful night. The other evidence including the statement of independent witness who had seen the accused with the wife of the deceased on the same night at about 1.00 a.m., was also recorded. During investigation it also came to light that accused and the wife of the deceased were having illicit relationship which was the cause of the deceased's murder. The contention of the learned counsel for the applicant in nutshell was that the F.I.R. was lodged against unknown persons. In the inquest report, to which the informant i.e. father of the deceased was a signatory, mentioned throttling of the deceased by unknown persons. It was his submission that it is only after postmortem that a story was cooked up alleging murder by the accused. He submitted that it is not a case of direct evidence. In fact, there is no evidence whatsoever pointing towards involvement of the applicant in murder of the deceased. The prosecution case is based entirely on suspicion. It is based on call details allegedly between the accused and the deceased and his wife which by itself does not prove murder of the deceased by the applicant. He pointed out discrepancy in the time of lodging Page No. 3 the F.I.R. and the Forensic Report to contend that the F.I.R. was not registered till the Forensic/ Medico Legal Report was prepared and this was done to cook up a story in the F.I.R. The said report mentions the date of Medico Legal/ Forensic examination as 19.02.2022 and the time as 09.00 a.m., whereas, the F.I.R. itself mentions the date of incident as 19.02.2022 and the time of registering the F.I.R. as 10.51 a.m. He submitted that if the death was by throttling then the deceased would have resisted and would have shouted, therefore, it is highly unlikely that the death occurred behind the house where several people were sleeping. Moreover, the informant and his daughters have stated in statement under Section 161 Cr.P.C. about hearing the altercation between the deceased and the accused, therefore, they would have certainly reacted to any such noise consequent to or in the process of throttling. His contention was that the applicant has been falsely implicated on a hunch or suspicion, therefore, he is entitled to be enlarged on bail. There is no likelihood of him tampering with evidence or interfering with the investigation or trial in any manner or for that matter of absconding. It was also the contention of the applicant's counsel that from the statement of the mother and father of the deceased it is apparent that the deceased was aware of the relationship of the accused with his wife, but, did not object to it, therefore, there is absence of motive which is relevant in a case based on circumstantial evidence. Page No. 4 Learned A.G.A. has opposed the bail application and submitted that the CDR details have disclosed the location of the applicant near the place of the incident and also that it is he who had called the deceased at the relevant time mentioned in the F.I.R. Moreover, there is an independent witness Rukhmani who has seen the accused and the deceased's wife at the time of incident, therefore, all the evidence clearly points to the commission of crime by the applicant and he is not entitled to be enlarged on bail, especially as, witnesses are yet to be examined and there is likelihood of the accused trying to influence the trial. The postmortem report mentions the cause of death of the deceased as Asphyxia due to ante-mortem throttling. No doubt, the F.I.R. was lodged against unknown persons and in the inquest report also death by throttling by unknown persons is mentioned. In view of the recitals in the F.I.R. that the deceased had received a phone call at 01.00 in the night on 19.02.2022 the Police collected call details from the Mobile of accused, deceased and his wife and based thereon it has been found that the accused was constantly in touch with the deceased and his wife. Most important, from the call details of Mobile No. 8318178730 of the deceased it was revealed that the accused had talked to him from his Mobile No. 6389707075, 374 times and had talked to the deceased lastly at 12.34.07 on 19.02.2022, therefore, according to the prosecution the call received by the deceased on the said night was from the accused during which an altercation took place between them. Both talked to each other for 276 Page No. 5 seconds. The last call of the deceased was with accused. Moreover, when the call details of the deceased's wife were scrutinized it was found that during period 01.01.2022 to 19.02.2022 the accused had called her from his mobile phone referred hereinabove 1232 times and on the date of incident i.e. 19.02.2022 also he had been continuously talking to her from 04.04.46 to 06.17.06 a.m. The accused and the deceased's wife were continuously in touch with each other on phone. It has also been found during investigation that location of mobile phone of the accused/applicant was near Sanigawan, Kanpur Nagar at 00.38.47 which tallies with the prosecution case and supports it. The applicant is resident of Police Station - Kakadev, whereas, the incident occurred at Sanigawan, Police Station - Chakeri. Based on the aforesaid, the presence of the accused/ applicant was found at the spot where the crime was committed. Moreover, according to the prosecution, the mobile phone of the deceased was recovered at the pointing of the accused/applicant from his house. Merely because the deceased was aware of the relationship of the accused with his wife and did not object to it earlier, would not in the facts and circumstances discussed hereinabove enure to the benefit of the accused/ applicant for being enlarged on bail, especially as, according to the prosecution an altercation took place between the accused and the deceased on phone which led the deceased to alight from the roof and thereafter, the murder is alleged have taken place and, according to the prosecution, the presence of the applicant/ accused was found in the area at the Page No. 6 relevant time based on the CDR details. Further more, there is an independent witness Rukhmani who has stated in Statement under Section 161 Cr.P.C. that she saw accused and the deceased's wife throwing something from the roof and also the statement of the informant that the accused used to come to meet the deceased's wife at his home in the night with the aid of a ladder from the adjacent house. Without saying much, suffice it to say that this is not a fit case for enlarging the applicant on bail, especially as, the witnesses have not been yet examined in the trial case. In view of the above discussion, the application for bail is hereby rejected. It is however made clear that none of the observations made hereinabove shall prejudice the trial and the rights of the applicant in this regard in any matter, as, they are only for the purposes of these proceedings under Section 439 Cr.P.C. (Rajan Roy,J.) Order Date :- 09.12.2022 R.K.P./Santosh Digitally signed by SANTOSH KUMAR Date: 2022.12.19 10:39:31 IST Reason: Location: High Court of Judicature at Allahabad