Jagvendra alias Babloo vs State of U.P.

Surendra Singh, J.—Being aggrieved by the order of refusal of bail dated 18.11.2008, passed by learned Additional Sessions Judge, Court No. 1, Bijnor, applicant-Jagvendra alias Babloo being prosecuted in Case Crime No. 1296 of 2008 under Sections 147, 148, 364, 302, 201, 120B and 404/34, I.P.C. Police Station, Najibabad, district Bijnor has preferred instant bail application before this Court.

Heard Sri P. N. Mishra, learned senior counsel for the applicant and Sri Mohd. Afzal, learned Counsel for the complainant as well as learned A.G.A. for the State and perused the material placed on the record.

The background facts of the prosecution case in nutshell are as follows:

On 19.7.2008 at about 2 p.m., the husband (Purshottam alias Jolly) of the first informant Smt. Mamta Tayal left his house on his motorcycle No. U.P.-20 P-9919 T.V.S. Star and thereafter he remained untraceable. The F.I.R. was lodged on 20.7.2008 at about 12.50 hours u/s 364, I.P.C. at police outpost Sarai of Police Station, Najibabad, district Bijnor. In F.I.R. she expressed her suspicion against non-applicants, namely, Dr. Manish, Ajai Maheshwari, Vijai Maheshwari, Vijai Prakash Agrawal, Rajiv Maheshwari, Ashok Kumar and Rakesh Pahalwan as there was some litigation between her husband and these people who were putting pressure upon her husband to compromise. Therefore, the motive behind the abduction and killing was property dispute and pending civil and criminal litigations between the parties. The case was later on converted to Sections 147, 148, 364, 302, 120B, 201 and 404/34, I.P.C.

The applicant was not named in the F.I.R., his complicity is based upon the statements of witnesses, namely, Musarrat Ali, Sukhjinder Singh and Masood Ahmed recorded u/s 161, Cr. P.C.

The statement of Musarrat Ali resident of Mohalla Mahal Sarai, Police Station, Najibabad, district Bijnor was recorded on 30.7.2008. He is alleged to have seen the applicant alongwith other co-accused, namely, Rakesh Pahalwan, Ajeet Chauhan as well as two snake charmers in the house of Dr. Manish on 16.7.2008.

The statement of Sukhjinder Singh, resident of Taharpur, Police Station, Najibabad, district Bijnor was recorded on 1.8.2008 u/s 161, Cr. P.C. He is alleged to have given an eye-witness account of the alleged assault on Purshottam alias Jolly (deceased). He has stated that he was going to Najibabad by a bus, as he has to meet one person of Mohalla Moti Nagar, but he alighted near Agrawal Petrol Pump from the bus and proceeded on foot on Vijai Nagar Road. When he reached near the house of co-accused Dr. Manish where at about 7.30 p.m. or 8 p.m., the shrieks coming from house of Dr. Manish attracted him and he went there and started to peep from the window and saw that two snake charmers were trying to get a person bitten by snake. However, when that did not have successful effect, co-accused Ajeet Chauhan picked up a bat and struck at the deceased on his head and he further saw that both the snake charmers, namely, Narveer and Mohan, Dr. Manish, Ajeet Chauhan, Rakesh Pahalwan, Rajesh and the applicant were present there. He has further stated that while the snake charmers were getting the deceased bitten by the snake, the other co-accused including the applicant were catching hold and pressing the deceased on the floor. He has further stated that after the incident at about 8 p.m. the deceased was carried away in Inova car and since he was afraid, he went back to his village Taharpur and did not disclose to anyone regarding the factum of incident.

Likewise the statement of another alleged witness Masood Ahmed was recorded on the same day, i.e., 13.8.2008. He repeated the same version as was narrated by aforesaid Sukhjinder Singh in his statement, but he did not mention the name of the applicant in his statement either recorded u/s 161, Cr. P.C. or Section 164, Cr. P.C. (on 21.8.2008).

It conspicuously transpires from the statements aforementioned that the prosecution case rests upon the statement of sole witness Sukhjinder Singh whose statement was recorded at the belated stage, i.e., 1.8.2008.

Learned Counsel for the applicant has submitted that the applicant is not named in the F.I.R. and he had no motive in disappearance or murder of the deceased and rather the applicant had not concern with any dispute between the deceased and co-accused Dr. Manish. He has further submitted that neither there is evidence of deceased being last seen in the company of the applicant nor there is any evidence of recovery of any article belonging to the deceased from his possession or on his pointing out. He has further submitted that in order to connect the applicant with the present crime, the prosecution relies only on the testimony of Sukhjinder Singh and Masooq Ahmed but no reliance can be placed on the statement of aforesaid witnesses for the reason that the statement of Sukhjinder Singh was recorded on 1.8.2008, while that of Masood Ahmed was recorded on 13.8.2008 at the belated stage. The conduct of Sukhjinder Singh, being sole witness, in not disclosing the name of the applicant at the earliest, seriously affects the prosecution case and, therefore, does not inspire confidence. As far as another proposed witness Masood Ahmed is concerned, he has not mentioned the applicant to be present in the house of co-accused Dr. Manish. Thus, the statement of both the witnesses are not analogous rather contradictory with each other. He has further submitted that both the aforesaid witnesses are purely chance witnesses and their conduct in neither reporting the matter to the police nor informing the complainant itself shows that they were got up witnesses and even if the statements of these witnesses are taken into account the role anointed to the applicant is merely that of catching hold the victim Purshottam alias Jolly and not causing him any injury at the moment when two snake charmers were trying him to be bitten by snake. He has further submitted that the applicant is in jail since 2.9.2008 and trial has not commenced which is likely to consume some time to conclude and moreover there is no criminal history to his credit and there are scanty chances of his absconding or tampering with the prosecution evidence, if he is released on bail.

On the other hand, learned Counsel for the complainant vehemently contended that this is a case of gruesome murder of the victim Purshottam alias Jolly which is alleged to have taken place inside the house of the co-accused Dr. Manish and the applicant was witnessed by the aforesaid witnesses having full participation in the crime. He has further submitted that in case he is allowed to be released on bail, there are chances of his absconding and tampering with the prosecution evidence.

The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie, satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered.

Considering totality of circumstances of the case, I consider it a fit case to enlarge the applicant on bail.

Without expressing any opinion on the merits of the case, let the applicant-Jagvendra alias Babloo involved in aforesaid crime be released on bail on his furnishing a personal bond of Rs. 25,000 and two sureties each in the like amount to the satisfaction of the Court concerned with the following conditions that:

The applicant shall not tamper with the prosecution evidence by intimidating the witnesses.

He shall cooperate with the investigation and speedy trial.

He shall not indulge in any criminal activity or commission of any crime after being released on bail.