# Ajay @ Anoop @ Ashok Kumar Gharadiya v. State of U.P

- **Citation:** (2022) 1 ILRA 1
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-04
- **Case number:** Criminal Misc. Bail Application No. 3487 of 2020
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-anoop-ashok-kumar-gharadiya-v-state-of-u-p-48088
- **Pages:** 5

## Headnote

Govt. Advocate

Dead
body
recovered-informant
identified the body from the photograph
shown- of his missing son-alleged that
deceased was last seen with accused
applicant -the statement cannot be
treated as last seen evidence as no
nexus with probable time of deathFurther post mortem report signified
that the dead body might be of a
mohammedan male.

Bail granted. (E-9)

List of Cases cited:

## Text

1 All. Ajay @ Anoop @ Ashok Kumar Gharadiya Vs. State of U.P.
1
(2022)01ILR A1
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.01.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Misc. Bail Application No. 3487 of 2020

Ajay @ Anoop @ Ashok Kumar Gharadiya
 ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Anurag S. Kaalesh

Counsel for the Opposite Party:
Govt. Advocate

Dead
body
recovered-informant
identified the body from the photograph
shown- of his missing son-alleged that
deceased was last seen with accused
applicant -the statement cannot be
treated as last seen evidence as no
nexus with probable time of deathFurther post mortem report signified
that the dead body might be of a
mohammedan male.

Bail granted. (E-9)

List of Cases cited:

1. Prahlad Singh Bhati Vs. NCT, Delhi & anr.-
(2001 4 SCC 280 ),

2. Sanjay Chandra Vs. Central Bureau of
Investigation reported in [(2012 1 SCC 40)-
(Spectrum Scam Case)]

3. Dataram Singh Vs. St. of U.P. & ors. reported
in [(2018) 3 SCC 22]

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out.

2. Learned counsel for the bail
applicant,
Sri
Anurag.
S.
Kaalesh,
Advocate and learned A.G.A. for the State
Sri L.J. Maurya, Advocate are present in
the Court.

3. The present bail-application is
moved on behalf of the accused-applicant
"Ajay
@
Anoop
@
Ashok
Kumar
Gharadiya", involved in Case Crime
No.061 of 2015, under Sections 302, 201,
34 of I.P.C., registered at Police Station
Alambagh, District Lucknow.

4. The occasion of present bail
application has arisen on rejection of bail
application of accused-applicant by learned
Additional Sessions Judge, Court No.1,
Lucknow vide order dated 17.12.2019.

5. Learned A.G.A. argued the case on
the basis of counter affidavit filed on behalf
of the State.

6. On the basis of materials placed
alongwith affidavit in support of bail
application as annexures, learned A.G.A.
submitted that an unknown dead body
floating in the drainage stuck on behind the
shop of informant, Manoj Kumar Sharma,
by reason of some obstructions in the
drainage, the dead body was dragged out
from the drainage by the local police. It
was found in post mortem report that the
dead body was about two days old as rigor
mortis was passed over the whole body and
skin was pealed off severally.

7. This is the incident dated
13.02.2015. The police entered into Case
Diary, the identification details and took
2 INDIAN LAW REPORTS ALLAHABAD SERIES
photographs of the unknown dead body.
Two days later, one Ram Autar Ladh
resident of Village Harinam Kheda, Police
Station Asoha, District Unnao came at the
Police Station Alambagh, District Lucknow
on information received about the recovery
of unknown dead body from drainage
suspecting that might be of his son, missing
from several months. He identified the dead
body from the photographs that the same
was of his son who was living alongwith
one Ajay @ Anoop @ Ashok Kumar
Gharadiya and Anil, both resident of
District Lucknow. The father, Ram Autar
Ladh stated, he earlier had come at the
place of residence of his aforesaid son with
Ajay and Anil but did not find them. This
was the incident on the festive days of Holi
when he did not find his son. He
apprehended that the aforesaid Ajay and
Anil might have murdered his son and
threw the body into the drainage for
vanishing the evidence of their guilt.

8. The aforesaid Ajay and Anil were
apprehended by the Police and on the
disclosure by Ajay in the custody, the
police party went to the place on his
leading and recovered the article of murder,
namely, knife. It is the confessional
statement on the basis of which, the present
accused-applicant was connected with the
crime of killing the deceased "Umesh @
Banafar @ Jaggu", the son of Ram Autar
Ladh. The post mortem report has also
reported anti mortem injuries, which are as
follows:-

"Stab wound 2 cm x 1 cm. x
trached deep present on lateral aspect of
left side neck, 5 cm. below angle of left
mandible, margin sharp, crescent & well
defead on opening, ecehymosis under neath
the injury under lying soft tissues, minor &
major vessels of left side neck, found."

9. The only evidences whereupon the
police has submitted the charge sheet
before the Court are confessional statement
of the present accused-applicant. The knife
recovered on the leading of the accusedapplicant when he was in custody and the
statement of father of the deceased, Ram
Autar Ladh to the effect that when he first
came to Lucknow to meet his son, he was
residing with Ajay and Anil but when again
on the festive days of Holi, he went there to
meet his son he did not find him, even the
aforesaid Anil and Ajay were also not
found there. Forensic Science Laboratory's
report is also taken into consideration
which examined the clothes, wore on the
person of the dead body stained with blood
and it was reported that the same was
human blood. However, the knife was sent
for the forensic examination but human
blood was not reported thereupon as the
stains were diffused.

10. Learned counsel for the bailapplicant argued that there is no strong
prima facie case or even the case
reasonably to be believed for fastening the
present accused-applicant under Section
302 of the I.P.C. as neither the direct
evidence with regard to the involvement
into the offence of killing under Section
302 read with Section 34 of I.P.C. with
some other co-accused nor circumstantial
evidences are there to form a chain so as to
lead the only conclusion about the killing
of the deceased "Umesh @ Banafar @
Jaggu" by the accused and none else.

11. On the aforesaid plea, learned
counsel for the bail-applicant submitted
that the accused-applicant is a local
resident of the District Lucknow and a
common
man
having
no
criminal
antecedents for the reason of which, he
may be held to tamper with evidence and to
1 All. Ajay @ Anoop @ Ashok Kumar Gharadiya Vs. State of U.P.
3
adversely affect the witnesses. Learned
counsel for the bail-applicant further
submitted that even he is facing trial and
almost six prosecution witnesses have been
examined in the case, therefore, there is no
possibility of tampering with the evidences
now, if he is released on bail, it would
facilitate
him
to
put
his
defence
efficaciously and properly.

12. Learned A.G.A. for the State
who has argued in the case on the basis of
counter affidavit filed on behalf of the
State opposed the bail on the ground that
the accused-applicant was last seen by the
father of the deceased with the deceased
when he was alive. Secondly, he argued
that
the
knife
recovered
from
the
possession of the accused-applicant also
bears stains of blood, however, it could
not be determined by reason of technical
cause of diffusion, whether the same is of
human blood or otherwise. Thirdly,
learned
A.G.A.
submitted
that
the
accused-applicant has admitted himself
his
involvement
in
the
killing
of
deceased.

13. Learned A.G.A. further stated
that the deceased was in habit of taking
smack as said by the father, therefore, the
possibility cannot be denied of over
powering him by the accused-applicant
for the purpose of killing, therefore, the
accused-applicant
cannot
plead
his
innocence for the purpose of grant of
bail.

14. In Prahlad Singh Bhati Vs. NCT,
Delhi and another - (2001 4 SCC 280 ),
Hon'ble the Supreme Court has held some
parameters for grant of bail, which are
being quoted hereunder:-

"8. The jurisdiction to grant bail
has to be exercised on the basis of wellsettled principles having regard to the
circumstances of each case and not in an
arbitrary manner. While granting the bail,
the court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
the character, behaviour, means and
standing of the accused, circumstances
which are peculiar to the accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public or State and similar other
considerations. It has also to be kept in
mind that for the purposes of granting the
bail the legislature has used the words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge. It is not expected, at this stage, to
have the evidence establishing the guilt of
the accused beyond reasonable doubt."

15. Hon'ble the Supreme Court in
para 21, 22 and 23 of the judgment given in
the case of Sanjay Chandra Vs. Central
Bureau of Investigation reported in [(2012
1 SCC 40)-(Spectrum Scam Case)], has
laid down certain objects of bail under
Section 437 & 439 of the Cr.P.C. which are
as follows:

"21.
In
bail
applications,
generally, it has been laid down from the
earliest times that the object of bail is to
4 INDIAN LAW REPORTS ALLAHABAD SERIES
secure the appearance of the accused
person at his trial by reasonable amount of
bail. The object of bail is neither punitive
nor preventative. Deprivation of liberty
must be considered a punishment, unless it
is required to ensure that an accused
person will stand his trial when called
upon. The courts owe more than verbal
respect to the principle that punishment
begins after conviction, and that every man
is deemed to be innocent until duly tried
and duly found guilty.

22. From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some unconvicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, "necessity" is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
witnesses if left at liberty, save in the most
extraordinary circumstances.

23. Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson."

16. In the present case where the father
stated, he had lastly seen the accusedapplicant with his son when he was alive
long ago much before the date 13.02.2015
when the dead body was found in the
drainage on the information of Manoj
Kumar Sharma, a shopkeeper of the area.
Last seen evidence is important when the
witness disclose the accused-applicant was
seen in the company of deceased just before
his death when he was alive. There should
not be an unreasonable and unexplained gap
of time between the time when the accused
last seen with the deceased when he was
alive and his death. The father's statement
cannot be treated as last seen evidence as the
same has no nexus with the probable time of
death. Moreover, when the direct evidence is
not available and in absence of direct
evidence, the circumstantial evidences as
collected by the Investigating Officer are not
so intact and unbroken so as to make a chain
of sequence so as to prima facie hold liable
the present accused-applicant and none else
for killing of the deceased "Umesh @
Banafar @ Jaggu", whose body was found
on 13.02.2015 in drainage and identified by
Ram Autar Ladh as his son. This is also
doubtful that whether Ram Autar Ladh has
correctly identified the dead body of his son,
as the doctor, who done the autopsy and
prepared the post mortem report when
examined in the Court stated that the private
part (penis) in the religious tradition of Islam
had circumcision (Khatana) which signified
the dead body might be of a mohammedan
male.

17. All these doubts either may find
affirmation or be disproved only in the
course of trial by cogent and sufficient
evidence. At this stage of grant or refusal of
bail, only this is to be assessed that whether
prima facie case of the prosecution is
established with regard to the offence with
which the accused-applicant is arraigned.
The answer would certainly be ''No', the
prima facie case of prosecution is not
1 All. Harnam @ Harinath Vs. State of U.P.
5
established. Gravity of offence alone
cannot be taken for refusal of bail even
severity of punishment is not material for
consideration of bail plea.

18. Keeping into mind the valuable right
of personal liberty and the fundamental
principle not to disbelieve a person to be
innocent unless held guilty and if he is not
arraigned with the charge of an offence for
which the law has put on him a reverse burden
of proving his innocence, as it is held in the
judgment of Hon'ble the Supreme Court in
Dataram Singh Vs. State of U.P. and ors.
reported in (2018) 3 SCC 22, I find force in
the submission of learned counsel for the bailapplicant to enlarge him on bail.

19.

Considering
the
facts
and
circumstances of the case, perusing the record,
considering
the
nature
of
allegations,
arguments advanced by learned counsel for the
parties and looking into the complicity of the
applicant-accused in the offence, the gravity of
offence, severity of punishment without
expressing any opinion on the merit of the
case, I find it to be a fit case for granting bail.

20. Let applicant (Ajay @ Anoop @
Ashok Kumar Gharadiya), involved in Case
Crime No.061 of 2015, under Sections 302,
201, 34 of I.P.C., registered at Police Station
Alambagh, District Lucknow be released on
bail on his furnishing a personal bond of
Rs.50,000/- and two reliable sureties of the
like amount to the satisfaction of the court
concerned subject to following additional
conditions, which are being imposed in the
interest of justice:-

(i) The applicant shall file an
undertaking to the effect that he shall not seek
any adjournment on the dates fixed for
evidence when the witnesses are present in
court. In case of default of this condition, it
shall be open for the trial court to treat it as
abuse of liberty of bail and pass orders in
accordance with law.

(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his counsel.
In case of his absence, without sufficient
cause, the trial court may proceed against him
under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuse the
liberty of bail during trial and in order to
secure his presence, proclamation under
Section 82 Cr.P.C. is issued and if the
applicant fails to appear before the court on the
date fixed in such proclamation, then, the trial
court shall initiate proceedings against him, in
accordance with law, under Section 174-A of
the Indian Penal Code.

(iv) The applicant shall remain
present, in person, before the trial court on the
dates fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in the
opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial court to
treat such default as abuse of liberty of bail
and proceed against him in accordance with
law.
----------
(2022)01ILR A5
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.01.2022

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Bail Application No. 4507 of 2020

Harnam @ Harinath ...Applicant
Versus
State of U.P. ...Opposite Party