# Mukesh v. State of U.P

- **Citation:** (2011) 3 ILRA 1212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-10-14
- **Case number:** Criminal Misc. Bail Application No. 23766 of 2010
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-v-state-of-u-p-42068
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 439Bail application Offence under section
302-named-from FIR stage-deceased 18
years young boy-sustained 10 antemorem injuries-at 9 P.M. The applicant
and other co-accused taken deceased for
threshening of wheat crops-but on spot
neither the crop nor its straw found-nor
blood found even on injury of crushingconsidering gravity of case-not entitled
for bail.

Held: Para 7

Considering the facts, circumstances of
the case, submission made by learned
counsel
for
the
applicant,
learned
A.G.A.and from the perusal of the record
it appears that the name of the applicant
has been disclosed by the first informant
at the inquiry stage, the allegation
against the applicant and co-accused
Subhash is that the deceased was called
by them from his house in the night of
16.4.2010 at about 7-8 P.M.for the
tractor threshing and in the morning the
dead body of the deceased was found
embedded in the thresher, neither in the
thresher nor near the thresher the wheat
crop and its straw was found, the
3 All] Mukesh V. State of U.P.
1213
deceased had sustained 10 ante morem
injuries
including
a
crushed
injury,
during investigation, the statement of
some
of
the
witnesses
have
been
recorded in support of the prosecution
version, the deceased was a young man,
aged about 18 years, the gravity of the
offence
is
too
much
and
without
expressing any opinion on the merits of
the case the applicant is not entitled for
bail, the prayer for bail is refused.

## Text

1212 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
exclusively triable by the Court of
Sessions, no process fee is payable by the
complainant, section 204 (4) Cr.P.C. has
no application in the instant case and the
complaint cannot be dismissed at the
instance of the complainant under section
204 (4) Cr.P.C. simply on the ground that
the complainant does not wish to pay the
process fee.

12. Offences under sections 363,
366, 376 IPC are serious and heinous
offences. Trial of such a case is not
dependent on the mercy or fancy of the
complainant. The complainant, in such a
case, cannot be permitted to say that she
does not wish to proceed with the trial and
the complaint be dismissed. A heinous
offence is an offence against society.
Once cognizance has been taken in a case
exclusively triable by the Court of
Sessions on the basis of a complaint and
the summoning order has been passed, the
Magistrate has no option, but to comply
with the provisions of section 208 Cr.P.C.
and to commit the case to the Court of
Sessions under section 209 Cr.P.C.

13. In view of the aforesaid, the
prayer made by applicant for dismissal of
her complaint under section 204 (4)
Cr.P.C. cannot be accepted.

14. The Application u/s 482 Cr.P.C.
is misconceived and is accordingly
dismissed.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.10.2011

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 23766 of 2010

Mukesh

...Applicant
versus
State of U.P.

 ...Opposite Party

Counsel for the Petitioner:
Sri Rajiv Gupta
Sri Dileep Kumar

Counsel for the Respondents:
Sri B.A. Khan
A.G.A.

Code of Criminal Procedure-Section 439Bail application Offence under section
302-named-from FIR stage-deceased 18
years young boy-sustained 10 antemorem injuries-at 9 P.M. The applicant
and other co-accused taken deceased for
threshening of wheat crops-but on spot
neither the crop nor its straw found-nor
blood found even on injury of crushingconsidering gravity of case-not entitled
for bail.

Held: Para 7

Considering the facts, circumstances of
the case, submission made by learned
counsel
for
the
applicant,
learned
A.G.A.and from the perusal of the record
it appears that the name of the applicant
has been disclosed by the first informant
at the inquiry stage, the allegation
against the applicant and co-accused
Subhash is that the deceased was called
by them from his house in the night of
16.4.2010 at about 7-8 P.M.for the
tractor threshing and in the morning the
dead body of the deceased was found
embedded in the thresher, neither in the
thresher nor near the thresher the wheat
crop and its straw was found, the
3 All] Mukesh V. State of U.P.
1213
deceased had sustained 10 ante morem
injuries
including
a
crushed
injury,
during investigation, the statement of
some
of
the
witnesses
have
been
recorded in support of the prosecution
version, the deceased was a young man,
aged about 18 years, the gravity of the
offence
is
too
much
and
without
expressing any opinion on the merits of
the case the applicant is not entitled for
bail, the prayer for bail is refused.

(Delivered by Hon'ble Ravindra Singh, J. )

1. Heard Sri Dilip Kumar and Rajeev
Gupta, learned counsel for the applicant,
learned A.G.A. and Sri B.A. Khan, learned
counsel for the complainant.

2. This bail application has been filed
by the applicant Mukesh with a prayer that
he may be released on bail in case crime
No. 442 of 2010 under section 302 IPC,
P.S. Karhal, District Mainpuri.

3. The facts in brief of this case are
that an information to the police station
Karhal was given by Sri Kamlesh Kumar
on 17.4.2010 at 6.10 A.M. mentioning that
his son, the deceased Charan Singh aged
about 18 years was taken from his house in
the evening on 16.4.2010 by the co-accused
Subhash and the applicant Mukesh. The
first informant was not permitting to go in
the company of the applicant and other coaccused person even then they had taken the
deceased. In the morning of 17.4.2010 at
about 4.00 A.M. first informant received
information that to know the whereabouts
of the deceased who had gone thresher. On
that information the first informant came to
the field with Suresh son of Megh Singh
and saw that thresher and tractor were
present but nobody was present there. He
saw the thresher in which body of the
deceased was embedded but he could not
know as to what manner the alleged
occurrence had taken place. On that
information the inquest report was prepared
on 17.4.2010 and the post mortem
examination was done on 17.4.2010 at 3.30
P.M. According to the post mortem
examination report the deceased had
sustained
ten
ante
mortem
injuries.
Thereafter the detailed FIR was lodged by
first informant Kamlesh Kumar at the police
station, Karhal on 6.5.2010 at about 7.00 or
8.00 P.M. The deceased was called by the
applicant and co-accused Subhash from his
house at the pretext of threshing the wheat
crop. The first informant was not permitting
because prior to five or six days, there had
been a quarrel between the applicant and
co-accused Subhash. The witness Sadho
Singh and Nigaate Lal saw the applicant
when they were taking the deceased at
about 9.00 P.M. on the way. By that time
they were extending the threats. On a quarry
made by them it was told by the deceased
that applicant and other co-accused persons
were taking him on field for threshing work.
On 17.4.2010 at about 4.00 A.M. it was told
by one Jaipal Singh that the deceased was
embedded in thresher. On that information
the first informant came to the field and saw
the dead body of the deceased embedded in
the tractor, the tractor was also parked there,
but the applicant and co-accused Subhash
were not present there. The deceased was
died but there was no blood in the thresher
or near the thresher there was no crop of the
wheat or straw of the wheat. This
information was given to the police station
concerned. On the same day witness Umesh
Kumar and Mahesh Chandra saw the
applicant and co-accused Subhash and two
unknown persons. They embedded the dead
body of the deceased at about 2.00 or 2.30
A.M. On 20.4.2011 it was apprised by the
Subhash that on 19.4.2010 at about 8.00
P.M. the applicant and co-accused Subhash
came there who stated that they had
1214 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
committed the mistake by committing the
murder of the deceased because he was not
paying their money and they asked for
compromise. The applicant applied for bail
before learned Sessions Judge, Mainpuri
who rejected the same on 19.4.2010.

4. It is contended by learned counsel
for the applicant that the first informant is
not an eye witness, in FIR there is no
reference that the alleged incident has been
witnessed by any person. The information
was given by the first informant about the
accidental death whose dead body was
embedded/inserted in the thresher but it was
mentioned that in the evening of 16.4.2011,
the deceased was called from his house by
the applicant and other co-accused persons,
though the first informant was not
permitting the deceased to go in the
company of the applicant and other coaccused and in the morning the dead body
was found. The report was scribed by
Rajveer Singh that on 6.5.2010 i.e. after
about 20 days of the alleged incident, an
application
was
moved
before
the
S.S.P.Mainpuri
making
the
allegation
against the applicant, the same has been
registered as FIR. The first informant has
been interrogated by the I.O. he narrated the
same story as mentioned in the FIR but on
important queries made by I.O. the first
informant kept silence, he was asked as to
why he did not reveal the event of quarrel
between the deceased and co-accused
Subhash which occurred about 5 or 6 days
prior to the alleged incident and as to why
he allowed the decease to go in the
company of accused persons, he was again
quarried as to whether he had given written
application on 17.4.2010 on in correct facts
about the death. He accepted that he had
handed over the written information on the
same day. Thereafter the I.O.had taken six
affidavits from the family members of the
victim. The said persons were, namely,
Sadho Singh, the real brother of grand
father of the victim, Nibhati Lal real brother
of grand father of the victim , Umesh
Kumar and Mahesh Chandra, the real
uncles of the victim and one Subhash
Chandra resident of Nagla Hare, the real
maternal uncle of the victim, they had
corroborated the concocted and improved
version which had seen in the light of the
day on 6.5.2010 for the first time. The
statement of Subhash was also recorded
showing that the applicant had made extra
judicial confession. The I.O.had recorded
the statement of other persons in the case
diary. Except above mentioned statement
there is no evidence against the applicant.
The entire story of prosecution is totally
false and concocted and cooked up. In the
present case no blood was found either on
the thresher or near the thresher. According
to the prosecution version there was no
wheat crop and straw. The witnesses, whose
statements have been recorded by the
I.O.are wholly unreliable and no reliance
can be placed on such belated and after
thought version, the applicant is having no
criminal antecedent.

5. But the post mortem examination
report shows that after sustaining the 10
ante mortem injuries including the crush
injury, the bleeding would have taken place.
It infers that the deceased was killed some
where else thereafter his dead body was
embedded in the thresher but during
investigation, no such evidence has been
collected by the I.O. to show the place
where the deceased was killed. Even the
prosecution is not clear as to how and in
what manner the deceased was killed. The
applicant is not involved in any criminal
case, he is in jail since 4.6.2011, he may be
released on bail.
3 All] Mukesh V. State of U.P.
1215

6. In reply of the above contention, it
is submitted by learned A.G.A.and the
counsel for the complainant that the names
of the applicant and other co-accused have
been disclosed at the first instance by the
first informant , the applicant and other coaccused Subhash had taken the deceased
from his house for working at thresher
because the deceased was a poor person,
aged about 18 years. The first informant had
asked not to go in the company of the
applicant and other co-accused persons even
then, he was taken by the applicant and
other co-accused Subhash, the applicant and
co-accused Subhash are very powerful
person, the deceased has been killed by the
applicant and other co-accused persons only
to teach the lesson to others also, in any way
at the time of threshing there was no wheat
crop because neither the wheat crop nor its
straw was found in or near the thresher, it
shows that by force the deceased was
embedded in the thresher, the deceased had
sustained 10 ante mortem injuries in
which,injury
no.8
was
crush
injury
involving from the lower abdomen below
umbilicus and waist ( left lower part of back
) to whole of left lower part, the deceased
had sustained abrasion and lacerated wound
also. It shows that by force the deceased
was embedded in the thresher and he has
been killed. It is also surprising that in the
filed at the alleged place of occurrence, the
tractor was there but applicant and other coaccused were not present there. It is a pre
planned murder. The I.O.had recorded the
statement of the witnesses, they have
supported the prosecution story, the witness
Umesh Kumar and Mahesh Chandra had
seen the incident in between 2.00 and 2.30
A.M. when they were inserting the deceased
inside the thresher. The applicant and other
co-accused are very powerful person, in
case the applicant is released on bail, he
may tamper with the evidence, the applicant
is having the association of criminals who
are extending the threats to the first
informant and other witnesses, the applicant
has been challaned under section 2/3
U.P.Gangser Act, therefore, the applicant
may not be released on bail.

7.

Considering
the
facts,
circumstances of the case, submission made
by learned counsel for the applicant, learned
A.G.A.and from the perusal of the record it
appears that the name of the applicant has
been disclosed by the first informant at the
inquiry stage, the allegation against the
applicant and co-accused Subhash is that
the deceased was called by them from his
house in the night of 16.4.2010 at about 7-8
P.M.for the tractor threshing and in the
morning the dead body of the deceased was
found embedded in the thresher, neither in
the thresher nor near the thresher the wheat
crop and its straw was found, the deceased
had sustained 10 ante morem injuries
including
a
crushed
injury,
during
investigation, the statement of some of the
witnesses have been recorded in support of
the prosecution version, the deceased was a
young man, aged about 18 years, the gravity
of the offence is too much and without
expressing any opinion on the merits of the
case the applicant is not entitled for bail, the
prayer for bail is refused.

8.

However,
considering
the
submission made by learned counsel for the
applicant that the applicant is in jail since
4.6.2010, it is directed that the proceedings
of the session trial pending against the
applicant
may
be
expedited
without
granting unnecessary adjournment to either
of the side.

9. With the above direction, this bail
application is disposed of.
---------
1216 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2011

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 36732 of 2008

Gaurav Pachaury

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Shri Rohit Singh
Sri Ishwar Chandra

Counsel for the Respondent:
C.S.C.

U.P. Recruitment of Dependent of Govt.
Servant (Dying in Harness Rules) 1974Rule
2
(a)
(iii)-compassionate
appointment-denial
on
ground
deceased employee was not regular
employee but a seasonal worker-heldmisconceived-petitioner's
case
fall
under clause 3 of rule 2-petitioner's
father was initially appointed as
Seasonal Collection Amin in 1979regular
appointment
made
on
25.03.1997-died
in
harness
on
13.02.2005-rejection of claim-illegalquashed.

Held: Para 14

Facts of the present case are quite
similar to the facts of the cases of Malti
Devi (supra) and Panmati Devi (supra)
before the Division Bench and in view
of the principles laid down by the
aforesaid
two
judgments,
the
impugned
order
dated
29.04.2008
passed by respondent no. 2 rejecting
the
claim
of
the
petitioner
for
compassionate appointment, cannot be
sustained and is hereby quashed.
Case law discussed:
2006 (1) ESC 316 (All) (DB); [2008 (4) ESC
2373 (All) (DB)]

(Delivered by Hon'ble Krishna Murari, J. )

1. Heard Shri Rohit Singh, learned
counsel for the petitioner and learned
Standing
Counsel
for
the
State
respondents.

2. Petitioner has approached this
Court for issuing a writ of certiorari to
quash
the
impugned
order
dated
29.04.2008 passed by District Magistrate,
Hathras rejecting the claim of the
petitioner for compassionate appointment.
A further writ of mandamus has been
claimed commanding the respondents to
appoint the petitioner on compassionate
ground.

3. Brief facts giving rise to the dispute
are that father of the petitioner was initially
appointed as seasonal Collection Amin on
25.07.1979 and posted at Tehsil Sadabad,
District
Mathura.
He
moved
a
representation before the District Magistrate
in the year 1996 claiming appointment on
the post of regular Collection Amin. When
no decision was taken, he approached this
Court by filing Writ Petition No. 37385 of
1996 along with other identically situated
Seasonal Collection Amin. The said writ
petition was disposed of by this Court vide
order dated 25.11.1996 directing the District
Magistrate to decide the representation filed
by the petitioners in accordance with law
and relevant rules and it was further directed
that if the services of the petitioners therein
have not been terminated, they shall be
permitted to continue in service and will
also be entitled to salary.

4. It has been urged that in
pursuance to the aforesaid order of this