RAJESH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicant, learned A.G.A. and perused record. The applicant is involved in Crime No. 18 of 2007 under Sections 302/120-B, 506/201/364-A I.P.C. Police Station Gomti Nagar District Lucknow. Briefly stated the prosecution story is that on 11.01.2007, property dealer Lok Nath Singh, resident of 1/868 Vishal Khand, Gomti Nagar, Lucknow got missing around 6:00 P.M. On the next day i.e. on 12.01.2007 his nephew Sanjay Singh got a F.I.R. registered in respect of his being missing. It was registered vide G.D. No.49. On 13.01.2007, statement of complainant Sanjay Singh was recorded wherein he expressed his suspicion on two persons, namely, Sarif @ Munna and Jagdish, who has been working as property dealer with Sri Lok Nath Singh and thereafter started doing separate business. Both of them were arrested on 19.01.2007 and they were behind the bars for more than 40 days. But ultimately a Final Report was submitted on 02.03.2007. On 02.03.2007 accused Nisar Ahmad was killed in police encounter. It is said that from his possession some letters written by one Reeta Pandey were recovered. Some SIM cards were also recovered. The police then arrested Reeta Pandey on the same very day i.e. on 02.03.2007. Then Reeta Pandey made confessional statement disclosing the kidnapping/abduction of Sri Lok Nath Singh. In her statement she also named the applicant as one of the members. She is said to be the gang leader. She also confessed to had known both the parties and also told about Nisar Ahmad who was killed in the police encounter on the same day. On 05.04.2007 the applicant was arrested in connection with a case under Section 25 Arms Act & 307 I.P.C., attempt on the police party and it is said that the applicant also confessed to have fired upon the deceased Lok Nath Singh with his revolver. He also confessed to had received an amount of Rs.8,00000/- out of the total amount of ransom of Rs.25,00000/-. Out of this amount he had spent Rs. 1,00000/- himself and the remaining amount of Rs.7,00000/- he had handed over to his brother-in-law (Bahnoi- Vibhuti Narain Singh, another accused). Sri Vibhuti Narain Singh surrendered himself after about six months. He confessed to had received an amount of Rs.7,00000/- but nothing was recovered from him. Sri Vibhuti Narain Singh is said to be an Executive Engineer who has not been granted bail on 7th January, 2008 (Annexure No.12). On the other hand on 18.04.2007 and 19.04.2007 statement of one witness Madan Singh of Jaunpur and Sushil Kumar Singh resident of Lucknow and Pankaj Singh (Annexure No. 4 to 6) were recorded under Section 161 Cr.P.C. whereas Madan Singh in his statement told that on 22.01.2007 around 12:00 in the night, after taking meal in a Dhaba situated at Jaunpur-Jalalpur road, while he was standing near a betel shop he saw that a Bolero Car got punctured on the road in which three persons were sitting on back side including the applicant. Then he recapitulated that one person sitting in the middle was Lok Nath Singh, the deceased. He also recognized one of the accused namely Jangi who was sitting with them. He also told that he was knowing the applicant also who used to move with accused Jangi Yadav. He further told that earlier due to fear he did not disclose it but when his conscious started pricking him he came forward to tell about it to the police. Another witness, namely, Pankaj Singh, resident of Chandauli in his statement dated 19.04.2007 told that after getting down from the bus at Jaunpur-Jalalpur road while going to the house of his relative he saw a Bolero Car parked at the bridge of river Sai wherein accused Jangi Yadav, Nisar Ahmad, Rajesh ( all accused of this case) were sitting. He also heard some noise of fire from inside the Bolero Car and Lok Nath Singh was killed inside the car. He also had a talk with accused Jangi Yadav who threatened him to not open his mouth. Thereafter he saw that the body of kidnapee-Lok Nath Singh was kept in a bag and was thrown in river Sai but the dead body could not be recovered till date. Sushil Kumar is said to be a witness of last seen. In his statement recorded on 19.04.2007, he told that he knew most of the accused persons from before including the applicant. As Nisar and Jangi Yadav were hardened criminals therefore he could not muster courage to come out to tell about the incident to the police but when Nisar Ahmad was killed in an encounter on 02.03.2002 then only he decided to tell about it to the police. According to him kidnapping was committed by accused Jangi Yadav and Nisar Ahmad and four others. He also saw the applicant going towards the Bolero Car. At that time he was purchasing cigarette at a betel shop. One Santro car registered in the name and parentage of the applicant is said to has been recovered on the pointing out from the residence of Dhurendra and it is said that in this car the applicant had gone with other accused and some of the accused had gone in the Bullero to collect the amount of ransom which was handed over by the son of the kidnappee namely Santosh Singh on 21.01.2007 near Gomti Nagar, Sultanpur. It is said that in the intervening night of 21/22/1.2007 the kidnappee wrote a latter addressed to his wife to collect money from four persons whose statements have also been brought on record. The following submissions have been made on behalf of the applicant:-- That the applicant is not named in the F.I.R. and the entire case is based on circumstantial evidence. It is further said that the dead body of the alleged kidnappee could not be recovered till date. Similarly neither any vehicle involved in the alleged incident nor any part of ransom amount has been recovered from the applicant. In the criminal case under Section 307 I.P.C. (an attempt on police party) and 25 Arms Act (alleged recovery of unlicensed revolver on 05.04.2007) the applicant has been acquitted on 11.02.2009 (Annexure SA-1). It is also said that the eagers and ingress of the alleged place of occurrence i.e. bridge situated in Jalalpur was affected on account of its renovation and repair work which was being conducted with effect from 27.07.2006 to 08.03.2007 as has been authenticated by the Executive Engineer Construction Division Public Works Department, Jaunpur vide its letter dated 27.05.2008 (Annexure SA-2). It is said that therefore it falsifies the prosecution story to the effect i.e. on 22.01.2007 two witnesses namely Pankaj Singh and Madan Singh had seen the Bullero car parked on the aforesaid bridge where the kidnappee was allegedly killed and thereafter his body was kept in a gunny bag and thrown in the river flowing below that bridge. It is said that the relevant averment contained in para 8 of the supplementary affidavit has been merely denied by the State. It has not been said that either this authentication was not made by the Executive Engineer or it was wrongly made. It is also said that the applicant was initially granted bail by the learned Additional Sessions Judge vide order dated 13.06.2008 (Annexure-13) in this case but then on an application moved on behalf of the State for recall/cancellation, the bail order was recalled/rejected on 02.07.2008. Then he moved fresh bail application which was rejected on 25.07.2008 by the learned court below. In this regard it is added that once a person has been released on bail the same could not have been cancelled on the request of the prosecution. The applicant remained in jail even after his aforesaid bail order because of his being an outsider (Varanasi) he could not file bail bonds. As he was in jail there was no question of misuse of bail till then. It is said that now he is languishing in jail with effect from 05.04.2007 i.e. for the last about two years and he has no criminal history to his credit. Lastly it is said that co-accused Monu, Saleem Ahmad alias Guddu, Ram Sakal Yadav, Dhurendra alias Dhirendra Kumar, Mohd. Rahees, Vibhuti Narayan Singh have already been enlarged on bail. It is pointed out that the said co-accused Monu happens to be brother of the aforesaid Reeta Pandey from whose possession a mobile phone has been allegedly recovered. Similarly according to the prosecution story co-accused Saleem Ahmad alias Guddu and Ram Sakal Yadav were also sitting in the Bullero car. At the pointing out of the Dhurendra the Santro car was recovered from the house of the aforesaid Vibhuti Narayan Singh who has already been enlarged on bail. It is further added that similarly co-accused Mohd. Rahees was also allegedly sitting on the same Bullero. On the other hand, the learned A.G.A. points out that the bail of co-accused Jungi Singh has been rejected on 19.12.2007. Similarly, one of the main accused Nasir has already been killed in an encounter. It is further submitted that any of the persons who were sitting in the Bullero Car and were actively involved in the killing and throwing the body of the deceased in the river have not been enlarged on bail till date. Learned A.G.A. also emphasizes that now the complainant Sanjay Singh has been examined in part as would be apparent from the latest report dated 05.05.2009 received from the learned court below. This report also shows that on an earlier occasion several efforts were made to call the witnesses but without any success. Ultimately a notice under Section 350 Cr.P.C. was issued along with the bailable warrant against some of the witnesses. It is said that if the applicant is enlarged on bail there is every likelihood that he will not even permit the witnesses to come to the witness box or he will endeavour to tamper the prosecution evidence. It is also emphasized that the applicant was actively involved in killing the kidnappee by firing inside the Bullero and then throwing his body into the river which was witnessed. Similarly out of total ransom of amount of rupees twenty five lacs the applicant received eight lacs rupees and in his confessional statement he had admitted to have received the aforesaid amount out of which he expent rupees one lac but deposited the remaining amount of rupees seven lacs with his brother-in-law, Vibhuti Narayan Singh. Besides it is said that the Santro Car belonging to the applicant was used at the time of receiving the ransom amount. 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 aforesaid facts and circumstances, without entering into the merits of the case and particularly having regard to the fact that the trial has started and complainant has already been examined in part, therefore it would not be proper to make any assessment regarding substantive statements or to enter into the merits of the case, lest it may affect the final outcome, I regret in not finding it to be a fit case for granting bail. Hence it is rejected. However, having regard to the fact that the applicant is languishing in jail for the last about one and half years the learned court below is directed to conclude the trial expeditiously. At this stage learned counsel for the applicant says that he does not want to press this bail application but this submission has now no significance. At the request of the learned counsel for the applicant it is however observed that the arguments advanced from both the sides as mentioned hereinabove will have no bearing either way on the merit of the case.