Smt. Vibha Tiwari vs State of U.P.

Shri Kant Tripathi, J.—The applicant Smt. Vibha Tiwari has moved this application for bail in the case crime No. 299 of 2008 under Sections 147 148 149 201 323 342 457 364 302 120B and 506 IPC and Section 7 of the Criminal Law Amendment Act, P.S. Dibiyapur, District Auraiya.

Heard Mr. V.C. Mishra, and Mr. Viresh Mishra the learned senior counsels assisted by Mr. Dilip Kumar for the applicant, Mr. Amrendra Nath Singh, the learned Counsel appearing for the complainant and the learned AGA for the State and perused the records.

It is alleged that the deceased Manoj Kumar Gupta was Executive Engineer, P.W.D., Auraiya on the date of the occurrence. The applicant''s husband Mr. Shekhar Tiwari is a sitting MLA, who wanted that certain bills should be passed by the deceased, but the deceased was not willing to oblige. It is also alleged that co-accused persons Shekhar Tiwari, Yogendra Singh Dohare @ Bhatiya, Vinay Tiwari @ Tyagi, Ram Babu and Manoj Awasti came to the house of the deceased in the night of 23/24.12.2008 at about 2.00 A.M. along with drivers Devendra Rajpoot and Santosh Tiwari and Gunner Gajraj Singh and Pal Singh and knocked the main door of the drawing room of the residence of the deceased and on querries made by the deceased and his wife, they told that they were CID persons and had come from Delhi. When the deceased and his wife did not open the door, the above named persons broke open the back door of the drawing room and entered inside the drawing room and mercilessly assaulted the deceased with danda, koda, kicks and fists and thereby caused severe injuries to the deceased and also confined his wife, namely, the complainant, in a room by bolting the room from outside and took the deceased in a vehicle and threw him in front of the main gait of the police station Dibiyapur and asked the co-accused Hoshiyar Singh, the S.H.O., P.S. Dibiyapur to make arrangements for his treatment. It is also alleged that the S.H.O., Dibiyapur deliberately avoided to make proper arrangements for treatment of the deceased and failed to carry him to the hospital promptly for treatment. The deceased was taken to the District Hospital early in the morning at about 5 A.M. but doctor found that the deceased had been brought dead to the hospital. Initially the investigation was undertaken by co-accused Hoshiyar Singh, the SHO, P.S. Dibiyapur but later on it was transferred to Sri Sureshwar, the Additional Superintendent of Police, Auraiya.

It is also alleged that the complicity of the applicant was that she reached the place of occurrence at about 2.30 AM on receiving an information regarding the incident on phone from the co-accused Ram Babu @ Pooti. This fact has been stated by co-accused Devendra Rajput. The applicant, on arriving at the place of occurrence, very loudly told the main accused persons Shekhar Tiwari and others "You people have not done good thing, you have seriously assaulted the deceased". She, then, asked one of the co-accused Vinay Tiwari to wash off the blood from the place of occurrence with a cloth (Ponchha) and also asked the assailants to take the deceased to the hospital for treatment otherwise he would die. At the instance of the applicant, the co-accused Vinay Tiwari washed off the blood from the place of occurrence. The complainant''s second statement recorded on 19.1.2009 u/s 161 Cr.P.C. is reproduced in roman script as follows:

Ek ne kaha ki Vidhayak Ji Vibha bhabhi aa gai hai, wah bahut gusse me hai to usi me se ek ne bola ki bibi hai gussa hoti rahati hai. Isi dauran kisi jne kaha ki pyas lag rahi hai dekho kahin pani ho to le aao to usi me se kisi ne drawing room me rakhe gilas wa pani lakar diya tabhi aurat ander drawing room me aa gai aur kaphi tej awaj me chillakar boli ki tum logon ne achcha nahin kiya, bahut mara hai Vinaya ponchha le aao yahan khoon pada hai ise achchi tarah saph kar do aur isko turant le jakar ilaj karao kahin mar na jay. Iske bad mahila ke kahane par drawing room me ponchha lagaya gaya....

The investigating officer''s conclusion was also referred to during the hearing, whose roman script is reproduced as follows:

Vibha Tiwari is abhiyukta dwara ghatna sthal engineer ke avas par pahunch kar wahan bade rakta par ponchha lagwane ki bat pramadit hui hai. Is prakar inke dwara is aparadh ke sakshya ka vilopan karna pramadit hota hai....

It is also alleged that after the incident, the applicant had telephonic conversations with the co-accused Hoshiyar Singh, the then SHO Dibiyapur with her mobile No. 9358765075. At that time the said SHO had mobile phone No. 9759558059. The investigating officer obtained print outs of the said two mobile phones, besides the print outs of mobile phone No. 9412378304 of co-accused Shekhar Tiwari which was in the use of his representative Manjul Pandey and mobile phone No. 9411020520 of the co-accused Bhatiya @ Yogendra Doharey, the former district president of Bahujan Samaj Party and mobile phone No. 9335154599 of co-accused Shekhar Tiwari, MLA as also of the mobile phone No. 9760935048 of co-accused Ram Babu @ Pooti. On the basis of these print outs, it was contended before me that applicant''s complicity was to provide assistance to the main accused Shekhar Tiwari to get him exonerated from the case.

It may also be mentioned that the applicant had filed writ petition No. 370/2009 for quashing the FIR which was heard and disposed of by a Division Bench of this Court, along with writ petition No. 428/2009 and 903/2009 filed, respectively, by co-accused Hoshiyar Singh and Manjul Pandey. All the writ petitions were dismissed with the direction that as far as possible, the investigation and the trial should be concluded within six months. It was further made clear that the observations made by the Division Bench had been made only in answer to the extensive arguments raised by the petitioners'' counsel and it was directed that the investigating agency and the trial court should decide the matter by exercise of their independent discretion and judicial mind. It may also be mentioned that on submission of the charge sheet, petitioners filed an application u/s 482 Cr.P.C. for quashing the proceedings but that application was finally disposed of with the direction that the applicants'' bail application shall be decided by the Courts below if possible, on the same day. It may also be mentioned that the concerned session trial has already been transferred from Auraiya judgeship to Lucknow sessions division by Hon''ble Saroj Bala, J. vide the order dated 11.5.2009 passed in the transfer application No. 173 of 2009.

The learned Counsel appearing for the complainant and the learned AGA questioned the jurisdiction of this Court and submitted that since trial has already been transferred to the Sessions Division, Lucknow, which situate within the local jurisdiction of the Lucknow Bench of this Court and as such the instant bail application is not maintainable before this Court at Allahabad. In reply, the learned senior counsels for the applicant submitted that the instant bail application was filed in this Court much prior to the transfer of the sessions trial from district Auraiya to district Lucknow and was pending on the date of the transfer order. When the bail application was moved, this Court had jurisdiction to entertain the bail application and as such the subsequent transfer of the sessions trial has not taken away the jurisdiction of this Court to hear and pass orders on the bail application. In my opinion, the submissions of the learned Counsel for the applicant has merit. The jurisdiction of this Court at Allahabad can not be said to have been ousted to dispose of the already pending bail application only on the ground that the concerned Sessions Trial has been transferred from district Auraiya to district Lucknow, particularly when the rejection order, which has been impugned in this case was passed by the Sessions Judge, Auraiya. As such the instant bail application is maintainable at Allahabad. I, therefore, do not agree with the submissions of the learned Counsel for the complainant and the learned AGA.

The learned senior counsel Mr. V.C. Mishra and Shri Viresh Mishra assisted by Shri Dileep Kumar appearing for the applicant, put forth the following points in support of the bail plea:

(a) The deceased''s wife, who lodged the FIR and happens to be the main witness against the applicant, has not named the applicant in the FIR as well as in her first statement recorded u/s 161 Cr.P.C. by the former investigating officer Hoshiyar Singh;

(b) Sri Sureshwar, the Additional Superintendent of Police Auraiya, the second investigating officer, before submitting the first charge sheet against the co-accused Shekhar Tiwari and others, recorded the statements of co-accused Vinay Tiwari and Shekhar Tiwari, who stated that it was co-accused Shekhar Tiwari, who got washed off the blood from the place of occurrence and the cloth used for washing off the blood from the place of occurrence was burnt by them. The investigating officer collected ash and semi-burnt cloth at their instance and prepared a fard thereof. At that time no complicity of the applicant was alleged;

(c) In the first charge sheet submitted against the co-accused Shekhar Tiwari and others, the applicant was not made as an accused;

(d) The investigating officer had perused the mobile call details before submitting the first charge sheet against the co-accused Shekhar Tiwari and others and had not indicated any complicity of the applicant;

(e) The statement of Constable Anand Bhushan Awasthi, though recorded after about 27 days of the occurrence, is not in any way incriminating against the applicant, as according to this witness, he was called by the applicant in the night at about 2.30 AM and he took the applicant to the concerned colony, who left him outside the colony and went herself inside the colony;

(f) The second statement of the complainant Shashi Gupta recorded on 19.1.2009, after about 27 days of the occurrence, is contrary to the contents of the FIR and her previous statement u/s 161 Cr.P.C.;

(g) The complainant Shashi Gupta has given statement only to the effect that the applicant asked the co-accused Shekhar Tiwari and others to wash off the blood from the place of occurrence and got the blood washed off with a cloth by co-accused Vinay Tiwari;

(h) If the statement of Shashi Gupta is taken as true, the applicant instead of giving any assistance to the main assailants, Shekhar Tiwari and others, told them that they have not done good thing and have seriously assaulted the deceased and then asked them to take the deceased to the hospital for treatment otherwise he would die. This gesture of the applicant can not be said to be in any way incriminating to support the plea that the applicant acted as a conspirator and abettor;

(i) The statement of complainant Shashi Gupta that one of the assailants told that Bhabhi Ji has come and she was highly angry and in reply thereof one of the assailants stated that she is wife and it is usual for her to be angry, further supports that the applicant was unhappy with the incident and as such can not be said to be conspirator or abettor;

(j) As per the statement of co-accused Devendra Rajput, the applicant arrived at the place of occurrence on a telephonic information given by co-accused Ram Babu @ Pooti, who informed her that "Vidhayak Ji aur sath ke logon ne lafda kar diya" and after about 15-20 minutes of the said telephonic information the applicant reached there;

(k) There is no evidence that mobile phone No. 9358765075 was in the use of the applicant. As a matter of fact this mobile phone number was in the name of co-accused Shekhar Tiwari and there was no reason for him to give his own mobile phone to the applicant specially when the applicant was herself the Chairman of the Municipality Dibiapur and it was quite natural and probable for her to have her own mobile phone instead of mobile phone of co-accused Shekhar Tiwari;

(l) There is no evidence as to what talk took place on phone between the applicant and the SHO Hoshiyar Singh;

(m) The way, the applicant reacted in respect of the incident and expressed her disapproval and required the main assailants to take the deceased to the hospital for treatment and told that otherwise the accused would die, it can be easily inferred that the applicant had not played any role in sharing the common object of the unlawful assembly formed by other co-accused;

(n) The Additional S.P. Sri Sureshwar, on completion of the investigation, arrived at the conclusion that the only evidence against the applicant was to the effect that she got washed off the blood from the place of occurrence and eliminated a material evidence of the case. The investigating officer has not drawn any other conclusion against the applicant. If the complicity of the applicant was to share the common object of the unlawful assembly and to give assistance to the main assailants or she was one of the conspirators and evidence to that effect had been collected during the investigation, there was no reason for the investigating officer Sri Sureshwar not to draw any such conclusion against the applicant and to draw the only conclusion that the applicant was guilty of eliminating a material evidence of the case and as such only an offence u/s 201 IPC is made out against the applicant, which is bailable; and,

(o) The applicant is a woman and the first proviso to Section 437(1) of the Cr.P.C. is attracted.

The learned AGA as well as the learned Counsel appearing for the complainant pressed the following points against the bail application:

a) The first statement of the complainant Shashi Gupta was recorded by the SHO Hoshiyar Singh who was acting in collusion with the accused persons and was subsequently made accused and as such the previous statement of the complainant can not be taken as a ground to discard her subsequent statement recorded on 19.1.2009;

b) Guards Jaiveer Singh and Sobaran who were deputed as security guards on the main gate of the colony, have supported the prosecution story;

c) The applicant did not take any step to save the life of the deceased;

d) The applicant has left her gunner outside the colony;

e) On chemical analysis, human blood was found on the cloth used for washing off the blood from the place of occurrence;

f) Adequate evidence has been collected against the applicant to show that the applicant has not only acted as a conspirator but also as an abettor; and,

g) That applicant had been absconding for about three months and surrendered only when she lost all the legal battles. She had even knocked the door of the Apex Court.

The learned AGA relied on the cases of State of U.P. v. Amar Mani Tripathi 2005 SCC (Cri)1960 (2) and Anil Kumar Tulsiyani v. State of U.P. and Anr. 2006 (55) ACC 1012 and submitted that keeping in view the nature of accusation and other circumstances of the case, the appellant is not entitled to bail. The Apex Court, in Amar Mani Tripathi''s case (supra) elaborated the matters to be considered in an application for bail in paragraph 18 of the judgment, which was reiterated in the case of Anil Kumar Tulsiyani''s case (supra) in paragraph 11 of the judgment. In the said two cases, the Supreme Court held that the following circumstances are to be considered in an application for bail:

(i)"Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii)nature and gravity of the charge;

(iii)severity of the punishment in the event of conviction;

(iv)danger of the accused absconding or fleeing, if released on bail;

(v)character, behaviour, means, position and standing of the accused;

(vi)likelihood of the offence being repeated;

(vii)reasonable apprehension of the witnesses being tampered with; and,

(viii)danger, of course, of justice being thwarted by grant of bail.

In reply, the learned Senior Counsel appearing for the applicant submitted that it is true that the first statement of the complainant was recorded by the co-accused Hoshiyar Singh as investigating officer but the same was in conformity with her own FIR and as such it can not be contended that the previous statement of the complainant was tainted. The complainant had attributed no complicity of the applicant either in the FIR or in her previous statement. She, after about 27 days of the occurrence, without any explanation of the delay, stated against the applicant only to the effect that she got washed off the blood from the place of occurrence. It was further submitted that the complainant has even disowned her FIR by her affidavit and as such no credibility can be given to the story set up by the prosecution.

The learned Senior Counsel for the applicant further submitted that the applicant was not in any way absconding. After the incident she had gone to Ranikhet to meet her daughter, who was studying there, and on return therefrom, went to the house of her parents and after that she filed a writ petition under Article 226 of the Constitution of India and after dismissal of the said writ petition an application u/s 482 Cr.P.C. was moved. When the applicant lost all the legal battles she surrendered before the Court. She had rights to pursue the legal remedies available to her in law and if she did so and waited for the result of the legal proceedings, she can not be contended as an absconder.

The learned Senior Counsel for the applicant further submitted that facts and circumstances of Amar Mani Tripathi''s case (supra) were altogether different. In that case, Amar Mani Tripathi and his wife, both played important roles in managing the murder of the deceased Madhumita Shukla and had the main complicity. In the present case, the applicant''s complicity as indicated in earlier paragraphs of this order was not as serious as was against the wife of Amar Mani Tripathi. The learned Senior Counsel for the applicant further submitted that the applicant cannot be denied bail only on the ground that offences committed by the co-accused Shekhar Tiwari and others were serious in nature, when she was neither one of the assailants nor acted as an abettor or conspirator and had merely eliminated a material evidence of the case which is an offence u/s 201 IPC and is bailable.

The law in regard to bail is well settled. The Court has discretion to grant bail in appropriate cases and the discretion has to be exercised in judicious manner. At the stage of bail, detailed examination of the evidence and elaborate documentation of the merit of the case is not necessary. It is however, necessary to indicate reasons for prima facie concluding why bail is being granted. The Court is, however, required to consider the materials supporting the charge and to record its prima facie satisfaction in respect thereof.

In the incident in question, a brutal murder of an Executive Engineer has been committed which is very shocking incident but even then complicity of the applicant has to be seen for considering her bail plea. The allegations of causing severe injuries to the deceased by entering into his official residence after breaking open the door and taking him in the injured condition to the police station Dibiyapur and throwing him outside the gate of the police station in injured condition have been made against co-accused Shekhar Tiwari, Yogendra Singh Doharey @ Bhatiya, Vinay Tiwari @ Tyagi, Ram Babu @ Pooti and Manoj Awasthi. No complicity of the applicant has been alleged in regard to these events of the incident in the FIR as well as in the first statement of the complainant recorded u/s 161 Cr.P.C. The applicant was not in picture in any way. The investigating officer Sri Sureshwar, Additional S.P. before submitting the first charge sheet against the co-accused Shekhar Tiwari and others, recorded the statements of co-accused Shekhar Tiwari and Vinay Tiwari and recovered, the semi burnt cloth used for washing off the blood and ash, at their instances in accordance with Section 27 of the Evidence Act. The statements of the said co-accused leading to the said recovery was to the effect that co-accused Shekhar Tiwari asked the co-accused Vinay Tiwari to wash off the blood from the place of occurrence with a cloth and burn the same, which was done so. The applicant was not in picture even at that stage. The investigating officer recorded the complainant''s second statement on 19.1.2009, after about 27 days, which has already been reproduced in para 4 of this order, according to which the only complicity of the applicant was that she on receiving information from co-accused Ram Babu @ Pooti reached the place of occurrence and got the blood washed off from the place of occurrence by co-accused Vinay Tiwari with a cloth (ponchha). The delay of 27 days in disclosing this fact prima facie goes against the State. The applicant expressed her disapproval in regard to the incident and told the main accused persons Shekhar Tiwari and others "You people have not done good thing, you have seriously assaulted the deceased" and also asked the assailants to take the deceased to the hospital for treatment otherwise he would die.On the basis of the statement of the complainant and other materials collected during the investigation, the investigating officer himself arrived at the conclusion that the applicant was guilty of getting the blood washed off from the place of occurrence and thereby eliminating a material evidence of the case.The actual text of the conclusion of the investigating officer has already been referred to in para 5 of this order.The mobile phone No. 9358765075 was in the name of co-accused Shekhar Tiwari and the learned AGA could not point out any material or evidence during hearing to show as to how the investigating officer arrived at the conclusion that the said mobile phone was in use of the applicant. In this connection, learned Senior Counsels appearing for the applicant submitted that there is no evidence in this regard and the investigating officer''s conclusion is based on conjectures and surmises. The applicant happens to be a woman, the provisions of the first Proviso to Section 437(1) Cr.P.C. are also attracted.

Keeping in view the facts and circumstances of the case and factual aspects of the matter, the points put forth by the learned Senior Counsels appearing for the applicant, as specified in paragraphs 9,12,13 and 14 of this order, prima facie seem to have substance for the purposes of bail.

Keeping in view the facts and circumstances of the case, submissions of the learned Counsels appearing for the applicant and the complainant and the learned AGA, complicity of the applicant and the nature of the evidence available against her, I am of the view that the applicant has made out a case for bail.

Let the applicant Smt. Vibha Tiwari involved in the case crime No. 299 of 2008, under Sections 147 148 149 201 323 342 457 364 302 120-B and 506 IPC and Section 7 of the Criminal Law Amendment Act, police station Dibiyapur, district Auraiya, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned and also subject to the following conditions:

1.the applicant will attend the court concerned in every month on the date fixed by the concerned court;

2.the applicant will not tamper with the witnesses;

3.the applicant will not indulge in any illegal activities during the period of bail.

In case of proof of default of any of the above conditions, the trial court shall be at liberty to cancel the bail of the applicant.

The observations made here in before will not cause any prejudice to the cases of the parties during the trial.