Deepak vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this application u/s 439, Cr. P.C. has been made on behalf of the applicant Deepak s/o Kishan Swaroop Meena, who is facing trial in S.T. No. 669 of 2007 arising out of Case Crime No. 430 of 2007 under Sections 147, 148, 364, 302 and 201, I.P.C., P.S. Kosi Kalan, district Mathura.

Ashok Kumar, aged about fifteen years, son of the complainant Bhagwat Singh Sharma had left the house on 13.6.2007 at about 5.00 p.m. on receiving a telephone call, but he did not come back and hence, search for him was made, but in vain. Further case of the prosecution is that the deceased was seen in the company of accused Deepak and co-accused Dr. Devki Nandan, Manoj, Rahul and Vishu on 13.6.2007 at about 5.15 p.m. at Kosi Restaurant. It is also alleged that dead body of the deceased was recovered on the pointing out of accused Deepak and other accused persons on 23.6.2007.

I have heard lengthy arguments of Sri S. K. Yadav, advocate appearing for the applicant, Sri Raghvendra Kumar Mishra representing the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that the dead body of the deceased is said to have been recovered on the joint pointing out of the accused persons, hence the applicant is entitled to be released on bail on this ground alone, because there is no sanctity of the recovery of dead body on the joint pointing out of the accused persons.

Regarding seeing the deceased in the company of accused persons by the witnesses Ramhet and Dau Dayal, it was submitted by learned Counsel for the applicant that false story of last seen has been concocted by the police with a view to falsely implicate the applicant and other accused persons.

About the extra-judicial confession, which is said to have been made by the applicant and other accused before the witnesses Tula Ram and Siya Ram, it was submitted by learned Counsel that after committing the murder, the accused would not confess their guilt before the persons, who were not in the position to save them from police.

It was further submitted by learned Counsel for the applicant that false story of recovery of the dead body on the pointing out of the accused persons on 23.6.2007 in the evening has been concocted, because the applicant was apprehended from his house on 22.6.2007, about which the father of the applicant had sent a letter to S.S.P. Mathura and a telegram was also sent on 23.6.2007 at 4.00 p.m. stating therein that his son Deepak has been carried by the police of Kosi Kalan on 22.6.2007 in the night at about 12 0''Clock. For this submission, attention of the Court was drawn towards the photostat copy of the application and telegram, which have been filed as Annexure SA-1 to the supplementary-affidavit dated 2.6.2008.

Last submission made by learned Counsel was that the applicant is languishing in jail since 23.6.2007 and hence he is entitled to be released on bail on the basis of long incarceration in jail, because due to delay in trial, his Fundamental Right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application was vehemently opposed by learned Counsel for the complainant and A.G.A. contending that the deceased was seen in the company of the applicant and other accused persons on 13.6.2007 by the witnesses Ram Het and Daudayal and dead body of deceased was recovered on the pointing out of the applicant and other accused on 23.6.2007. About the application and telegram, which are said to have been sent by the father of applicant to S.S.P., Mathura on 23.6.2007. it was submitted by learned Counsel that involvement of the applicant had come to light much prior to 23.6.2007 and with a view to create false defence, the father of the applicant had sent application and telegram to S.S.P., Mathura.

It was also submitted by learned Counsel for the complainant that there is no legal bar in admissibility of the evidence about recovery of the dead body on the joint pointing out of more than one accused.

I have carefully gone through the entire material on record. The deceased Ashok Kumar was seen in the company of applicant and other accused on 13.6.2007 in the evening. The dead body of the deceased was taken out from a pit on the pointing out of the applicant and other accused persons on 23.6.2007. Therefore, having regard to the aforesaid submissions made by learned Counsel for the applicant and keeping in view the evidence available in the case diary, in this heinous crime, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicants cannot be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII (2008) ACC 115: 2008 (3) ACR 3216 (SC) in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail application is hereby rejected.

The trial court is directed to conclude the trial of the applicants within a period of six months applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments.

The S.S.P., Mathura is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the trial court concerned and it must be ensured that the witnesses are produced in the trial court for evidence without causing any delay.

The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P., Mathura for necessary action.