Abhishek alias Dimple Tiwari vs State of U.P.

Ravindra Singh, J.—This application has been filed by the applicant Abhishek alias Dimple Tiwari with a prayer that he may be released on bail in Case Crime No. 81 of 2007 under Sections 364, 302, 201, 120B, I.P.C., P. S. Barhaj, District Deoria.

The facts in brief of this case are that the F.I.R. of this case has been lodged by Sri Sanker Tiwari on 8.3.2007 at 8.30 p.m. in respect of the incident which had occurred on 8.3.2007 at about 4.00 p.m. The applicant and co-accused Smt. Narbada and Bhrigurasan Tiwari are named in the F.I.R. as accused.

It is alleged that the deceased Golu was kidnapped by the applicant and other co-accused Dimple on 8.3.2007 at about 4.00 p.m. The applicant''s mother and the mother of the deceased Golu are real sisters. The deceased has been kidnapped and thereafter murdered only because the applicant and his family members were having the impression that the first informant shall give his property to Smt. Santosh. The age of the deceased Golu was about 12 years. The first informant is maternal grandfather of the applicant. During investigation the applicant was arrested by the police and at his pointing out the dead body of the deceased was recovered. According to the post mortem examination report the deceased had sustained four ante mortem injuries. The cause of death was due to strangulation and fire arm injuries. The applicant applied for bail before learned sessions Judge, Deoria who rejected the same on 7.8.2007. Being aggrieved from the order dated 7.8.2007 the present bail application has been moved by the applicant.

Heard Sri Dileep Kumar and Sri Pavan Kishore, learned Counsel for the applicant, learned A.G.A., for the State of U.P. and Sri Akhilanand Mishra, learned Counsel for the complainant.

It is contended by learned Counsel for the applicant that :

(1) applicant is son of Mausi of the deceased. The applicant was having no motive or intention to commit the alleged offence. The deceased and his mother were living alongwith the first informant, the applicant and his family was having no litigation with the family of the deceased even they have to get nothing after the murder of the deceased because the elder brother of the deceased is surviving ;

(2) that F.I.R. of this case has been lodged only on the basis of doubt and suspicion because even according to the F.I.R. there is no witness of kidnapping ;

(3) that according to the F.I.R. there is no reference of the threat or any other telephonic message in respect of killing of the deceased but subsequently it has been improved by the first informant in his statement recorded u/s 161, Cr. P.C. and there was no reference about Virendra. The name of Virendra has been introduced first time by the first informant in his statement recorded u/s 161, Cr. P.C. ;

(4) that the arrest of the applicant shown by the I.O. on 9.3.2007 and the recovery of the dead body at the pointing out of the applicant from a field has been planted. It is not supported by any independent witness. It is surprising that without recording the statement of the applicant the recovery has been shown. The statement of the applicant has been recorded after the recovery of country made pistol, scarf and the dead body. It has no evidential value u/s 27 of Evidence Act because first of all the disclosure statement be recorded, thereafter if recovery is made it shall be read against the applicant u/s 27 of Evidence Act. During investigation the evidence of last seen has also been collected by the I.O., which is a weak type of evidence. The prosecution story is not corroborated by post mortem examination report. The first informant was constable in the Jail Department, he was prosecuted for the offence punishable under Sections 363, 366, 376 and he was acquitted, he is not a reliable person. The applicant is a student aged about 19 years. He is having no criminal antecedent. The other co-accused, father and mother of the applicant have been released on bail by learned Sessions Judge, Deoria, therefore, the applicant may also be released on bail.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that in the present case F.I.R. has been lodged by maternal grandfather of the applicant. There was no reason of false implication. The deceased was enticed away by the applicant, subsequently he has been killed and his dead body has been recovered at the pointing out of the applicant. During investigation the credible evidence has been collected by the I.O. to show the involvement of the applicant in the commission of the alleged offence. The case of the co-accused persons who have been released on bail is based on different footing, i.e., of hatching a conspiracy. The applicant is the main accused, he has committed the murder of a boy aged about 12 years. The applicant was having strong motive to commit the alleged offence as alleged by the prosecution, in case the applicant is released on bail, he shall tamper with the evidence.

Considering the facts, circumstances of this case, submissions made by learned Counsel for the applicant, learned A.G.A., learned Counsel for the complainant and considering the gravity of the offence which is too much and without expressing any opinion on the merits of the case the applicant is not entitled to be released on bail. The prayer for bail is refused.

Accordingly, this application is rejected.