Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Bail 302 IPC-not Named In The FIR-eyewitness Knew Applicant-named After Three Days-not Assaulted Deceased-bail Granted.
JUDGEMENT TITLE : Arvind @ Dabaloo Vs. State Of U.P. On 14/09/2009 By Allahabad High Court
CASE NO : CRIMINAL MISC. BAIL APPLICATION NO. 24805 OF 2008
CORAM : Hon'ble Vinod Prasad,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No.55

Criminal Miscellaneous Bail Application No.24805 Of 2008
Arvind @ Dabloo ..................................Applicant
Versus
State Of U.P...................................Opposite Party


Hon'ble Vinod Prasad, J.

The Applicant Has Sought His Release On Bail In Crime No.477 Of 2006, Under Sections 364, 302, 120-B IPC, Police Station Sikarara, District Jaunpur. Order In The Bail Application Was Reserved But Avizandum Need To Hear It Further Arose And Hence This Bail Application Is Listed For Further Hearing Today.
Encapsulated Allegations Against The Applicant Is That One Person Ved Nath Shukla (deceased) Was An Advocate In District Court, Jaunpur. On 20.11.2006 At 6.30 P.m. While Returning From The Court On His Motorcycle UP 62 A-1441, Some Unknown People Chased Him On Two Motorcycles. He Was Not Traced Out. The Causa Sans Of The Said Abduction Was Alleged To Be One Immovable Property Dispute With One Mahesh Chandra Mishra, Who Was Threatening The Deceased To Enter Into A Compromise Otherwise Bear The Consequences. The Said Mahesh Chandra Mishra Alongwith Other Socio-criminises Premnath @ Binda Tiwari Had Also Fired At The Deceased. It Was Further Alleged That The Aforesaid Two Persons Used To Threaten The Deceased.
According To The Informant, Loknath Shukla, Who Is A Practising Advocate Of This Court It Is Alleged That The Incident Of Abduction/kidnapping Of The Deceased Was Informed To Him By Chotta Lal, Keshav Dubey And Brij Bhushan. They Had Also Informed That They Can Recognize The Accused Persons, If They Are Produced Before Them. The Incident Was Narrated To The Informant At His Residence By The Aforesaid Three Persons. The Informant Reached At The Place Of The Incident Where Some People Also Informed Him That The Deceased Had Been Abducted On Motorcycles. Since The Abductee, Who Was The Brother Of The Informant Could Not Be Traced Out, Therefore On 21.11.2006 At 5.05 P.m., After Twenty Four Hours The Informant Lodged The FIR Against Unknown Persons, As Crime No.477 Of 2006, Under Sections 364, 302, 120-B IPC, Police Station Sikarara, District Jaunpur.
Perusal Of The Case Diary, Which Has Been Produced Before Me By Learned AGA, Indicates That After Registration Of The FIR, 161 Cr.P.C. Statement Of The Informant Was Recorded, Who Reiterated His Version Levelled In The First Information Report. Thereafter, On 23.11.2006 The Motorcycle Of The Deceased Was Recovered From The Possession Of One Rajendra Kumar, Who Was The Relative Of The Deceased And Had Taken The Motorcycle To His House From The Place Of The Incident. Thereafter The Statement Of The Alleged Eye-witness Keshav Dubey Was Recorded. In His Statement 161 Cr.P.C., The Said Witness Named The Applicant And One Rinku Singh, As The Persons, Who Were Amongst The Abductors And Had Abducted The Deceased On Motorcycles. The Applicant Was Riding One Motorcycle With Another Co-accused. On Another Motorcycle, Which Was In The Middle, The Deceased Was Abducted Alongwith Two Other Persons. There Was A Third Motorcycle Also At The Spot, Which Was Used By Other Accused Persons. Another Witness Also Repeated The Same Story.
Case Diary Further Reveals That On 23.11.2006 Investigating Officer Recorded Statement Of Om Prakash Tiwari And Then On The Following Day I.e. 24th November, He Searched For The Deceased But Could Not Trace Him. The Case Diary Further Reveals That On 25.11.2006, The Dead Body Of The Deceased Was Found Within The Premises Of Police Station Jalalpur Floating In The River In A Dilapidated Condition. Inquest Was Conducted And The Body Was Identified By The Brother Informant. Case Diary Further Reveals That On 26th Applicant And Amit Kumar Singh @ Raju Singh Accused Were Apprehended By The Police And Their Statements Were Recorded.
On Such Facts, I Have Heard Sri G.S. Hajela, Learned Counsel For The Applicant Along With Sri Anil Kumar Srivastava As Well As Sri Sher Singh, Learned AGA And Informant Loknath Shukla Appearing In Person.
Learned Counsel For The Applicant Contended That In This Case There Is No Evidence Against The Applicant. He Further Contended That Taking The Prosecution Case In Its Totality, The Only Allegation Against The Applicant Is That He Was Riding Motorcycle With Another Co-accused, Which Was Going Ahead Of The Motorcycle On Which The Deceased Was Abducted. It Is Further Submitted That Witnesses Of Fact Are Not Reliable At All. He Further Submitted That The Applicant Is Not Named In The FIR Nor It Is Alleged That He Had Assaulted The Deceased At The Time Of His Abduction. He Further Contended That There Was No Reason For The Applicant To Participate In The Crime And He Does Not Have Any Criminal History Whatsoever. It Is Further Submitted That Had The Three Eyewitnesses Of Abduction Had Really Seen The Incident They Would Have Divulged The Correct Narration Of The Incident To The Informant Alongwith The Names Of The Applicant And Amit Kumar Singh @ Raju Since They Knew The Applicant Prior To The Incident. There Was No Reason For Them Not To Divulge The Name Of The Applicant At Its Earliest Disclosure. Learned Counsel For The Applicant On The Above Reason Prayed For Bail To The Applicant, As He Is Already In Jail Since 26.11.06 Near About Three Years.
Learned AGA As Well As Informant, Who Is Personally Appearing In This Case, On The Contrary Contended That The Deceased Was A Practising Advocate And He Has Been Murdered Because Of The Dispute Of The Immovable Property. It Is Further Contended That The Applicant Is A Member Of Hired Criminal Gang And Therefore, He Should Not Be Released On Bail. It Is Further Contended That Not Mentioning The Name Of The Applicant Is Because Of The Reason That He Belong To A Gang Of Anti-social Persons.
I Have Considered The Submissions Raised By All The Counsels And Have Gone Through The Material Contained In The Case Diary. What Is Utmost Important Is That Even Though Three Witnesses Of Fact Named The Applicant In Their Statement Under Section 161 Cr.P.C., They Did Not Disclose The Same To The Informant That Applicant Was One Of The Abductors. On The Contrary, The FIR Is Registered Against Some Unknown Persons. Version Of The FIR, Which Has Been Lodged By None Other Than A Practising Advocate Of This Court Is That He Was Informed By Those Eyewitnesses That If The Accused Persons Can Be Produced Before Them, They Can Recognize Them. Admittedly, No Identification Of The Applicant Ever Took Place For Establishing Such A Charge. On The Contrary Under Section 161 Cr.P.C., Recorded After Two Days, The Name Of The Applicant Was Disclosed, As An Accused. If Three Witnesses Knew The Applicant Prior To The Incident Why They Did Not Inform The Advocate Informant About The Incident. There Was No Hitch For Them Not To Disclose The Name Of The Applicant At Its Earliest Opportunity. Further 161 Cr.P.C. Statement Is Contradicted By The FIR, As The FIR Is Conspicuously Silent About The Assault Made On The Deceased At The Time Of Abduction By The Abductors. If These Witnesses Had Really Seen The Incident Why They Did Not Divulge About Assault Made On The Deceased. Another Dicey Feature Of The Whole Case Is That The Investigating Officer Recorded Statement Of Those Three Eye-witnesses On 22.11.2006 But I.O. Did Not Make Any Endeavour Whatsoever Till 26th November To Raid The House Of The Applicant. If The Applicant Was Really An Accused, There Was No Reason For The I.O. Not To Make Any Endeavour For Arrest Of The Applicant For A Period Three Days. Further The Motorcycle Of The Deceased Was Whisked Away From The Spot By Rajender Singh. If The Informant Had Reached The Spot Soon After The Incident Absence Of Motorcycle Should Have Been Noted By Him At That Point Of Time, Which He Did Not Note At All. Why The Informant Did Not Locate The Motorcycle Is Something Which Is A Very Dicey Piece Of Evidence. Another Dicey Feature Is That On 25th, Body Of The Deceased Was Discovered And The Informant Recognized The Dead Body To Be That Of The Deceased. That Being The Fact Non Raiding Of The Houses Of The Accused Further Erodes The Prosecution Version. I Have Gone Into The Details All These Facts, As The Informant And Deceased Are Practising Advocate In The District Court And This Court. Repeated Inquiry By The Court As To Whether The Applicant Accused Has Got A Criminal History Or Not, The Informant And The Learned AGA Could Not Inform Me Even A Single Crime Being Committed By The Applicant At Any Point Of Time.
Looking To The Period Of Detention That Is 26.11.2006 Practically Three Year From Now And Looking To The Material Contained In The Case Diary, I Consider It Appropriate To Release The Applicant On Bail.
Let The Applicant Arvind @ Dabloo Be Released On Bail In Crime No.477 Of 2006, Under Sections 364, 302, 120-B IPC, Police Station Sikarara, District Jaunpur On His Furnishing A Personal Bond Of Rs.1,00,000/- (Rs. One Lac) And Two Solvent Sureties Each In The Like Amount To The Satisfaction Of Court Concerned On The Following Conditions:
1. That The Applicant Will Report To The Police Station Concerned Once In A Month At Date And Time To Be Fixed By Officer Incharge Of The Police Station Concerned.
2. That The Applicant Will Not Tamper With The Prosecution Witnesses And Will Not Abscond.
3. That The Applicant Will Co-operate With The Trial And Will Not Seek Any Unnecessary And Uncalled For Adjournment.
4.That The Applicant Will Not Leave The District Without Prior Permission Of The Concerned Court And Prior Intimation To His Police Station Concerned.
It Is Made Clear That Any Observations Made By Me In This Order Shall Not Effect The Mind Of Trial Judge, Who Is Directed To Decide The Case Independently On The Basis Of Evidences Adduced Before It During The Trial.

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