ANAND SEN YADAV Vs. STATE OF U P

JUDGEMENT

(1.) REJOINDER affidavit and supplementary rejoinder affidavit filed today are taken on record. Heard Sushri Nandita Bharti, learned counsel for the applicant, Sri Umesh Verma learned Additional Government Advocate assisted by Sri Mahmood Alam, Advocate on behalf of the complainant and perused the record. The applicant is involved in Case Crime No. 1674 of 2007 under Sections 364/302/201/120-B I.P.C. and Section 3 (ii) (v) SC & ST Act, Police Station Kotwali Ayodhya, District Faizabad. According to the prosecution story the deceased aged about 22-23 years was got killed on account of her having become pregnant with the applicant who was holding a prestigious position. On his direction his driver (co-accused) killed her and threw her body in river Gomti in the outskirts of Faizabad about 40 Kms. away from the city. It is said that earlier the deceased was suffering from hepatitis B and the applicant extended all possible help and support in respect of her treatment and on that pretext he often used to visit the house of the deceased and came close to her. The father of the deceased had a mobile phone and a SIM card in his name which was used by his deceased daughter. She used to talk with the applicant even during late hours in the night and some of the conversations were overheard by sister Anita. The deceased was once angirily saying to the applicant that she will get his red light removed. On 22.10.2007 the deceased left her residence around 9:00 A.M. and after a short meeting with her friend Arpita she sat down in the car waiting outside which was being driven by co-accused Vijay Sen. In that car co-accused Seema Azad was also sitting. In respect of Seema Azad, it is said that she was also having intimate relations with the applicant from before and when the deceased came closer to the applicant, she asked her to keep away and also threatened her. In the process of these immoral relationships, the deceased also came into close contact with Vijay Sen, the driver of the applicant who was already a married man. When the deceased did not come back after going out on the aforesaid date, her father brought it to the notice of the applicant who advised him to lodge a report and assured to extend every possible help. Accordingly, a report was lodged in respect of disappearance of deceased on 23.10.2007. Then on 30th October, 2007 a named F.I.R. was lodged by the father of the deceased against co-accused Vijay Sen (Driver) and Seema Azad saying that on the pretext of getting her employment the co-accused Vijay Sen has taken away complainant's daughter along with Seema Azad somewhere. On that fateful day the deceased was wearing one wrist watch of Sonata Brand with a black strap which was found lying on the bank of the river Gomti, near the alleged place of occurrence. The prosecution has also brought on record, two love letters and also certain call details in a tabular form to suggest that there were frequent conversations between all the aforesaid accused and the deceased. According to the prosecution on his arrest the co-accused Vijay Sen initially made a confessional statement saying that he had intimate relationship with the deceased. Since he was a married man he could not have married the deceased. But she was insisting for the same. On the fateful day he had gone with the deceased on his motorcycle at the alleged place of occurrence. There the deceased committed suicide out of frustration by jumping into the river. When he (Vijay Sen) was asked to get that motorcycle recovered then he again changed his version and kept on changing. He also said that if he disclosed the truth he will be killed. Ultimately he was put to Polygraph and Brain Mapping Test wherein he is said to have confessed that on the direction of the applicant he took the deceased in a car to the place of occurrence. There he kissed her and after strangulation threw her body in the river. He also told that at that time the deceased was pregnant with the applicant. As against the complicity of the applicant and proposed evidence it is submitted by the learned counsel for the applicant that there is no direct evidence and the entire case is based on the circumstantial evidence. Further it is submitted that the so-called confessional statement of the co-accused Vijay Sen including the statement made by him during brain mapping and Narco test are not admissible in the evidence in view of the Section 30 of Evidence Act because he was in police custody. It is further submitted that the applicant is not named in the F.I.R. and there is no evidence of hatching conspiracy. The corpus has also not been recovered till date and therefore the death has not been proved. It is also submitted that the deceased might have had a close and intimate relations with Vijay Sen, the driver of the applicant, as would be apparent from perusal of the call details which have been brought on record and he might have killed her. But the applicant is not involved in the matter, still he is unnecessary languishing in jail for the last about ten months. In respect of criminal history, it is submitted that out of 13 cases shown against him, last case pertaining to Case Crime No.144 of 2009, under Sections 386, 120-B I.P.C. is said to be after the present incident. According to the report of this case the present complainant had been recently threatened by one Jagdamba (so-called hench man of the applicant) asking him to arrive at some compromise or face dire consequences. It is argued that this report is false and the applicant would be seeking bail in that case very soon. Out of the remaining 12 cases the Case Crime No.92 of 1985, under Sections 302, 395, 397, 307, 332, 326, 323, 147 I.P.C. was withdrawn by the State Government in the year 1995. In three cases pertaining to Crime Nos. 14 of 1996, 327 of 1999 and 225 of 2001 he was acquitted. Similarly proceedings of Case Crime No.294 of 2006 have been stayed by this Court. In respect of Case Crime No.259 of 2001 and 228 of 2001 it is said that no such case was registered against him. In respect of Case Crime No. 291 of 2003 it has been averred that final report was submitted by the police. In Case Crime No.537 of 2006 it is said that the applicant was neither named nor charge-sheeted. But he was summoned under Section 319 Cr.P.C. under Sections 147, 148, 149, 307, 323 I.P.C. It is added that now the proceedings of this case has been stayed vide order dated 04.03.2009 passed in Criminal Revision No.112 of 2009. In the remaining two cases pertaining to Crime No.223 of 2001, under Sections 147, 148, 149, 307, 395 and Case Crime No. 260-A of 2001, under Sections 147, 323, 224, 506, 435, 302 and 436 I.P.C. he is on bail. In respect of Case Crime No.257 of 2001 under Sections 409 and 420 I.P.C. it is said that he is not an accused in this case. Instead his father is an accused in this case. From the side of the prosecution, it is submitted that though the dead body of the deceased could not be recovered but discovery of dead body is a rule of caution and not of law and where a strong circumstantial evidence exists conviction can be recorded even in the absence of dead body. In respect of admissibility of brain mapping test, it is submitted that admissibility of a result of a scientific test will depend on its authenticity. Whether the brain mapping test is so developed that the report will have provocative value so as to enable the court to place reliance thereupon, is a matter which would require further consideration if and when the material in support thereof are placed before the court during trial. In respect of admissibility of confessional statement of Vijay Sen (co-accused) showing his own complicity and that of applicant it is said that co-accused Vijay Sen was in judicial custody and not in police custody when his brain mapping and Narco test were made and the learned C.J.M., Lucknow has specifically refrained the Investigating Officer from being present at the time of Narco test and had instead he had directed the Superintendent of Jail to take the accused with him for the test. Concedly the trial has also started now and PW-1 the complainant of the case has been examined in part. It is also brought to the notice of the Court that for the last about one month the lawyers had been abstaining from work in Faizabad Judgeship due to which further examination could not be done. Be that as it may. Since the trial has begun, therefore it would not be proper to enter into the merits of the case at this stage, lest it may affect the final outcome of the trial. The bail is vehemently opposed by learned A.G.A. assisted by learned private counsel Sri Mahmood Alam. The points pertaining to nature of accusation, danger of accused absconding or fleeing if released on bail, character, behaviour and position of the accused, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered. In view of the above mentioned facts and circumstances, without entering into the merits of the case and particularly having regard to the fact that the trial has started and it would not be proper to make assessment of substantive statements and to enter into merit of the case, lest it may effect final outcome of the trial, I regret in not finding it to be a fit case for granting bail at this stage. Hence it is rejected. The learned court below is however directed to conclude the trial expeditiously as the applicant is said to be in jail for the last about ten months.