Sanjay vs State of U.P.

Vijay Kumar Verma, J.—Heard Sri. Indra Mani Tripathi, advocate, appearing for the applicant and A.G.A. for the State.

The allegations made in the F.I.R. lodged on 5.10.2006 by Arun, son of Ram Naresh Giri at P.S. Pilkhuwa, district Ghaziabad at Case Crime No. 254 of 2006, under Sections 302 and 506, I.P.C., in brief, are that the accused Sanjay had borrowed Rs. 2,500 from Mithilesh, mother of the complainant and when she demanded that money on 4.10.2006, he became angry. It is also alleged that on next day, i.e., 5.10.2006 at about 4.00 p.m., Sanjay and his father Om Prakash set Smt. Mithilesh on fire, due to which she died.

The main submission made by learned Counsel for the applicant is that motive as alleged in the F.I.R. is very weak and for the sake of Rs. 2,500 only, no person would commit the murder of innocent lady.

Next submission made by learned Counsel is that if the applicant was having country-made pistol, then he could commit the murder of deceased by shooting her.

Drawing my attention towards the site plan paper No. 21, it is submitted by learned Counsel that the incident is said to have been witnessed by the complainant from a distance of 50 mts. only, but he did not make any effort to save his mother, and hence on this ground the presence of the complainant at the time of incident is doubtful.

Further submission made by learned Counsel is that applicant is resident of other village and story of committing the murder of deceased is false and concocted. For this submission attention of the Court has been drawn towards statement of Ram Naresh Giri, husband of the deceased also, which has been filed with listing application dated 5.5.2009.

It is also submitted that incident of burning the deceased is said to have occurred below the chhappar, but the chhappar was not burnt, which also makes the story doubtful.

It is also submitted that co-accused Om Prakash has been granted bail by another Bench of this Court vide order dated 27.11.2007, passed in Criminal Misc. Bail Application No. 3540 of 2007 and hence on this ground of the principle of parity, the applicant is also entitled to be released on bail, because the role of pouring kerosene oil was assigned to the co-accused Om Prakash, who has been enlarged on bail.

It is also submitted that the applicant is languishing in jail since October, 2006 and hence on the basis of long incarceration in jail, he is entitled to be released on bail, as due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application has been opposed by A.G.A. contending that specific role of setting the deceased on fire has been attributed to the applicant and hence in this heinous crime, he should not be released on bail.

On the point of granting bail on this ground of parity, it is submitted by learned A.G.A. that parity cannot be the sole ground for bail.

I have carefully gone through the entire material on record. There is sufficient prima facie evidence to show that the applicant Sanjay had set the deceased on fire after pouring kerosene oil by his father. The post-mortem report (Annexure-2) shows that the deceased had died due to burn injuries. Therefore, having regard to overall facts and circumstances of the case and keeping in view the evidence available in the case diary, but without expressing any opinion about merit of the case, in this heinous crime of taking the life of an innocent lady without any lawful excuse, the applicant does not deserve bail.

I entirely agree with the contention of learned A.G.A. that parity cannot be the sole ground for bail. Reliance can be placed on Shahnawaz alias Shanu v. State of U.P. (LXVI)2009 ACC 189 : 2009 (3) ACR 3260.

In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. (LXIII)2008 ACC 115 : 2008 (3) ACR 3216 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 within a period of six months making sincere efforts and applying the provisions of Section 309, Code of Criminal Procedure.

S.S.P., Ghaziabad is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the Court concerned and it must be ensured that all the witnesses are produced in the session trial arising out of aforesaid case 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., Ghaziabad for necessary action.