Ram Avtar alias Munna vs State of U.P.

Vijay Kumar Verma, J.—By means of this application u/s 439, Cr. P. C., prayer for bail has been made on behalf of the applicant Ram Avtar alias Munna s/o Ram Yagya Tiwari, in Case Crime No. 233 of 2007, under Sections 364, 302, 376 and 201, I.P.C., P.S. Sarai Mamrez, district Allahabad.

Km. Resham, aged about 10 years, is the unfortunate victim, whose murder was committed after committing rape with her. She was the sister of the complainant Ashish Tiwari, who lodged an F.I.R. on 19.10.2007 at P.S. Sarai Mamrez (Allahabad), where a case under Sections 364, 302 and 201, I.P.C. was registered at Crime No. 233 of 2007 against the accused Ram Avtar (applicant herein). The allegations made in the F.I.R., in brief, are that Km. Reshma. (hereinafter to be referred as deceased) had gone to see Durga Puja in the village at about 7.00 p.m. on 16.10.2007, from where she disappeared. The complainant gave information about disappearance of his sister at P.S. Sarai Mamrez on 17.10.2007 at 11.30 a.m. When the complainant was making search of the deceased, Chandramani Shukla and Sanjay Tiwari told him that they had seen Km. Resham with Ram Avtar alias Munna in Durgapuja, who were roaming together and Ram Avtar was saying the victim that he would give her the stalks of millets (Bazra) and at about 8.00 p.m. she had gone away with Ram Avtar from Durgapuja. It is further alleged in the F.I.R. that the dead body of deceased was found lying on 19.10.2007 at about 4.30 p.m. in the field of millets crop of Hari Ram Tiwari, 3. I have heard lengthy arguments of Sri Ali Hasan, advocate, appearing for the applicant, Sri Sanjay Pratap Singh, advocate representing the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that there is no eye-witness of the incident of committing rape and murder of the deceased by the applicant and the only incriminating circumstance against him is of last seen evidence and hence the applicant deserves to be released on bail.

It was further submitted by learned Counsel for the applicant that the deceased is alleged to have been seen in the company of the applicant in Durgapuja on 16.10.2007 at about 8.00 p.m., whereas the dead body of deceased was recovered from the field of millets crop of Hari Ram Tiwari on 19.10.2007 and hence, on this ground also, the applicant is entitled to be released on bail, because there is no evidence to show that the deceased and applicant were seen together till her death.

It was also submitted by learned Counsel that other accused of this case have been granted bail and hence, on the basis of the principle of parity also the applicant deserve bail.

Next submission made by learned Counsel was that the applicant is languishing in jail since 22.10.2007 and hence, on the basis of long detention period in jail, he is entitled to be released on bail, because due to delay in trial, his fundamental right of speedy trial envisaged in Article 21 of the Constitution is being violated.

Bail application was vehemently opposed by learned Counsel for the complainant and A.G.A. contending that after carrying the deceased on 16.10.2007 at about 8.00 p.m. from Durgapuja on the pretext of giving her millet stalks, the applicant Ram Avtar committed rape with her in his house and after committing murder, her dead body was concealed by the accused persons in the field of millets crop of Hari Ram Tiwari, from where the dead body in badly damaged condition was recovered by the complainant in presence of village people on 19.10.2007 and hence, in this heinous crime of rape and murder, the applicant should not be released on bail.

It was further submitted by learned Counsel for the complainant and A.G.A. that the witness Ganesh Prasad had heard shrieks of a girl in the house of applicant on 16.10.2007 at about 8.30 p.m. at the time when he was going to see Durgapuja. For this submission, my attention was drawn towards the statement of Ganesh Prasad Tiwari recorded in parcha No. 17 of the case diary.

It was also submitted by learned A.G.A. and counsel for the complainant that after committing rape with the deceased on 16.10.2007 in the night at about 8.30 p.m., murder of deceased was committed in the same night and thereafter the dead body was concealed by the accused persons in millets crop of Hari Ram Tiwari. In this context, my attention was drawn towards the post mortem report (Annexure-1), according to which, the vagina of the deceased was found lacerated and uterus was coming out from the vagina.

It was also submitted by learned Counsel for the complainant and A.G.A. that the applicant Ram Avtar alias Munna and his father Ram Ji Tiwari, co-accused Ram Manorath Tiwari and Smt. Lalti Tiwari as well as Km. Pramila alias Parmila, sister of the applicant were seen coming from towards the millets crop of Hari Ram Tiwari in the intervening night of 18/19.10.2007 in between 12.00-1.00 a.m. by the witness Lal Ji Maurya and Nirakar Yadav. Submission made by learned Counsel for the complainant was that these accused persons were coming after concealing the dead body of deceased in millet crop field of Hari Ram Tiwari in that night.

I have carefully gone through the entire case diary and other material on record. There is prima facie evidence to show that the deceased and applicant Ram Avtar alias Munna were seen together in Durga Puja pandal on 16.10.2007 and they both left the pandal at about 8.00 p.m. In the same night at about 8.30 p.m., the witness Ganesh Prasad Tiwari had heard the shrieks of a girl from the house of applicant. There is prima facie evidence to show that in the intervening night of 18/19.10.2007, the applicant and other accused persons were seen coming together from towards the millets crop field of Hari Ram Tiwari, from where the dead body of deceased was recovered on 19.10.2007 at about 4.30 p.m. At the time of post mortem examination of the dead body of the deceased, her vagina was found lacerated, which indicates that the rape was committed with the deceased before committing her murder. Therefore, having regard to all these facts, but without expressing any opinion on merit, in this heinous crime, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicant 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 concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months making sincere efforts and applying the provisions of Section 309, Cr. P.C.

S.S.P., Allahabad also is 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 session trial arising out of Case Crime No. 233 of 2007 of P.S. Sarai Mamrez 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., Allahabad for necessary action.