# Sunil Kumar Yadav v. State of U.P. & Anr

- **Citation:** (2023) 12 ILRA 19
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-24
- **Case number:** Criminal Appeal No. 1160 of 2020
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-kumar-yadav-v-state-of-u-p-anr-49475
- **Pages:** 5

## Headnote

Criminal Law-The Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989-Section 14-A (ii)---
Criminal
appeal
against
impugned
order
rejecting the bail of the appellant under Sections
301,201 & 363 I.P.C & Section 3(2) (5) of SC/ST
Act---Appellant not named in the F.I.R.; no one
has seen the appellant committing the alleged
crime; there is no independent eye witness who
has seen the appellant or any other co-accused
person committing the alleged crime; there is no
motive of killing the deceased; the deceased
was a child and was residing separately to some
other place and the appellant was residing to
some other place---No one had seen the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of crime, no connecting link to
indicate the involvement of appellant in the
commission
of
crime,
it
is
a
case
of
circumstantial evidence and the chain of
evidence is totally broken, the police has also
failed to complete the chain of evidence to
connect the appellant in the present crime---
Appellant may be enlarged on bail with certain
conditions---Impugned order set aside.

Appeal allowed. (E-15)

List of Cases cited:

## Text

12 All. Sunil Kumar Yadav Vs. State of U.P. & Anr.
19
not vitiate the trial, however, causes a dent
in the prosecution case.

The investigating officer though
is said to have proved the site plan but
considering the statement of P.W.1, P.W.3
and P.W.4, it can be said that the
investigating officer has not even visited
the village. The investigation has been
conducted in a very casual manner. Overall,
the prosecution failed to prove its case
beyond reasonable doubt.

15. Thus, in view of shaky testimony
of the prosecutrix which is made doubtful
by the statement of P.W.3 and P.W.4,
coupled with the lack of any corroborative
material to determine the exact age of the
prosecutrix except the medical report,
according to which she appears to be above
sixteen years of age, the testimony of P.W.3
and P.W.4, particularly their statement that
the victim was going ahead and the accused
Lalla was following her, she went with the
accused with silver jewellery and cash of
Rs.2200/- as per the written report of P.W.1
himself, I am not inclined to affirm the
judgment of conviction of the appellant
under Section 376 I.P.C.

16. In view of what has been stated
hereinabove, the criminal appeal is allowed
and the judgment and order of conviction
and sentence dated 10.3.2000, passed by
Additional Sessions Judge-XI, Lucknow in
Sessions Trial No.671 of 1997 (Crime
No.22 of 1997) State vs. Lalla, P.S.
Gosainganj, district Lucknow is set aside.
The appellant is acquitted of the charges
levelled against him. The appellant be
released from jail forthwith.

17. Let a copy of this judgment be
transmitted to the trial Court as well as
Superintendent,
Jail
concerned,
for
compliance. The lower court records be
also sent, back to the lower court.

18. Mr. Rehan Ahmad Siddiqui,
learned amicus curiae shall be paid by the
Registry of this Court a sum of Rs.20,000/-
for contesting the case on behalf of the
appellant.

19. The Senior Registrar of this Court
is directed to ensure compliance.
----------
(2023) 12 ILRA 19
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1160 of 2020

Sunil Kumar Yadav ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Irshad Ali, Syed Husain Abbas

Counsel for the Respondents:
G.A., Bhanu Pratap Kushwaha, Deepak
Kumar Kamlay, Siya Ram

Criminal Law-The Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989-Section 14-A (ii)---
Criminal
appeal
against
impugned
order
rejecting the bail of the appellant under Sections
301,201 & 363 I.P.C & Section 3(2) (5) of SC/ST
Act---Appellant not named in the F.I.R.; no one
has seen the appellant committing the alleged
crime; there is no independent eye witness who
has seen the appellant or any other co-accused
person committing the alleged crime; there is no
motive of killing the deceased; the deceased
was a child and was residing separately to some
other place and the appellant was residing to
some other place---No one had seen the
20 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of crime, no connecting link to
indicate the involvement of appellant in the
commission
of
crime,
it
is
a
case
of
circumstantial evidence and the chain of
evidence is totally broken, the police has also
failed to complete the chain of evidence to
connect the appellant in the present crime---
Appellant may be enlarged on bail with certain
conditions---Impugned order set aside.

Appeal allowed. (E-15)

List of Cases cited:

1. Kamal Vs St. of Har., 2004 (13) SCC 526

2. Takht Singh Vs St. of M.P., 2001 (10) SCC
463

3. Dataram Singh Vs St. of U.P. & anr., reported
in (2018) 3 SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Case is taken up in the revise call.

2. Today when the case is taken up,
no counter affidavit has been filed on
behalf of opposite party No.2, as such, it
appears that opposite party No.2 is not
interested in filing counter affidavit in this
case. Since the matter pertains to bail and
learned counsel for the appellant presses
urgency in the matter, therefore, this Court
has no other option but to proceed for final
arguments to decide the present appeal.

3. Heard learned counsel for the
appellant, learned Counsel for opposite
party No.2 and Sri Ashok Kumar Singh,
learned A.G.A-I for the State and perused
the entire record.

4. This Criminal Appeal under Section
14-A (ii) of Scheduled Castes & Scheduled
Tribes (Prevention of Atrocities) Act has been
preferred against the impugned order dated
19.10.2020 passed by learned Special Judge,
SC/ST Act, Hardoi in Bail Application
No.1742 of 2020 relating to Case Crime
No.464 of 2019 under Sections 302, 201 and
363 I.P.C. and Section 3(2)(5) of SC/ST Act,
Police Station-Atrauli, District-Hardoi by
which the bail application of the appellant has
been rejected.

5. Learned counsel for the appellant
submits that the appellant is innocent and has
falsely been implicated in the present case
due to enmity and village party bandi. The
appellant was named in the F.I.R. but no
specific role has been assigned to the
appellant for the commission of offence. The
F.I.R. was lodged by the father of the
deceased and in the F.I.R. he has reported his
son to be missing and he has further stated
that the appellant asked his son to bring some
items from the market for which he gave
some money to him but after handing over
the items to the appellant, he went missing.
He further submits that as per prosecution
case it was informed that a dead body was
lying in the orchid situated in the village,
when the family members of the deceased
went there, they saw the dead body of their
son but there is no independent eye witness to
support the prosecution story. He further
submits that initially the F.I.R. was lodged
under Section 363 I.P.C. against unknown
person and in the F.I.R., the complainant
clearly stated that he does not belong to
SC/ST category, thus, it appears that the
present prosecution is based on false and
fabricated facts. He further submits that there
was some old enmity in respect of local
elections in between the appellant and the
complainant and as per the postmortem report
also there were nine injuries on the body of
the deceased but no injuries were found on
the neck and abdomen region.

6. Learned counsel for the appellant
further submits that on the information of
12 All. Sunil Kumar Yadav Vs. State of U.P. & Anr.
21
the complainant/informant, the appellant
was arrested on 22.11.2019 and the only
evidence against the accused/appellant is
the statements of the villagers wherein,
they had stated that the deceased was last
seen with the appellant, after that he went
missing.

7. Learned counsel for the appellant
further submits that the deceased was living
separately and was done to death by some
unknown person. The appellant has falsely
implicated on the statement of the villagers,
which was taken by the police. He further
submits that the charge-sheet was filed in a
mechanical manner without considering the
evidence on record. The recovery of
weapon used was also made by the police.
There is no motive to kill the deceased.

8. Learned counsel for the appellant
while placing reliance upon the judgment
of Hon'ble Supreme Court in the case of
Sharad Birdhichand Sarda Vs. State of
Maharshtra : 1984 Cri. L.J. 178 has
argued
that
no
one
had
seen
the
commission
of
crime,
there
is
no
connecting link to indicate the involvement
of appellant in the commission of crime, it
is a case of circumstantial evidence and the
chain of evidence is totally broken, the
police has also failed to complete the chain
of evidence to connect the appellant in the
present crime. He further submits that the
appellant is not involved in the present
crime, thus he should be released on bail.

9. Learned counsel for the appellant
further submits that the appellant is in jail
since 22.11.2019 and has by now done a
substantial period of incarceration. In
support of his argument, he has placed
reliance of Hon'ble Apex Court judgment in
the case of Kamal Vs. State of Haryana,
2004 (13) SCC 526 and submitted that the
Hon'ble Apex Court was pleased to observe
in paragraph no. 2 of the judgment as under
:-

"2. This is a case in which the
appellant has been convicted u/s 304-B of
the India Penal Code and sentenced to
imprisonment for 7 years. It appears that
so far the appellant has undergone
imprisonment for about 2 years and four
months. The High Court declined to grant
bail pending disposal of the appeal before
it. We are of the view that the bail should
have been granted by the High Court,
especially having regard to the fact that the
appellant has already served a substantial
period
of
the
sentence.
In
the
circumstances, we direct that the bail be
granted to the appellant on conditions as
may be imposed by the District and
Sessions Judge, Faridabad."

10. Learned counsel for the appellant
has also placed reliance of Hon'ble Apex
Court judgment in the case of Takht Singh
Vs. State of Madhya Pradesh, 2001 (10)
SCC 463, and submitted that the Hon'ble
Apex Court was pleased to observe in
paragraph no. 2 of the judgment as under:-

"2. The appellants have been
convicted under Section 302/149, Indian
Penal Code by the learned Sessions Judge
and have been sentenced to imprisonment
for life. Against the said conviction and
sentence their appeal to the High Court is
pending. Before the High Court application
for suspension of sentence and bail was
filed but the High Court rejected that
prayer
indicating
therein
that
the
applicants can renew their prayer for bail
after one year. After the expiry of one year
the second application was filed but the
same has been rejected by the impugned
order. It is submitted that the appellants are
22 INDIAN LAW REPORTS ALLAHABAD SERIES
already in jail for over 3 years and 3
months. There is no possibility of early
hearing of the appeal in the High Court.
In
the
aforesaid
circumstances
the
applicants be released on bail to the
satisfaction of the learned Chief Judicial
Magistrate,
Sehore.
The
appeal
is
disposed of accordingly."

11. Learned counsel for the appellant
further submits that ratio of law applicable
in above those cases is also applicable in
the case of the appellant, therefore, the
appellant may be enlarged on bail by this
Court sympathetically.

12. Several other submissions regarding
legality and illegality of the allegations made
in the F.I.R. have also been placed forth
before the Court. The circumstances which,
according to the counsel, led to the false
implication of the accused, have also been
touched upon at length. It has been assured
on behalf of the appellant that he is ready to
cooperate with the process of law and shall
faithfully make himself available before the
court whenever required and is also ready to
accept all the conditions which the Court may
deem fit to impose upon him. The appellant
undertakes that in case he is released on bail
he will not misuse the liberty of bail and will
cooperate in trial. The appellant is in jail since
22.11.2019 and that in the wake of heavy
pendency of cases in the courts, there is no
likelihood of any early conclusion of trial.

13. Learned A.G.A. opposed the
prayer for bail of the appellant and submits
that it is only in the statement of the
viilagers, the name of the appellant came
into light but he does not dispute this fact
that the appellant has already undergone
substantial period of detention and the
present
prosecution
is
based
on
circumstantial evidence.

14. After perusing the record in the
light of the submissions made at the Bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, the unlikelihood of
early conclusion of trial and also the
absence of any convincing material to
indicate the possibility of tampering with
the evidence, considering that the appellant
was not named in the F.I.R.; no one has
seen the appellant committing the alleged
crime; there is no independent eye witness
who has seen the appellant or any other coaccused person committing the alleged
crime; there is no motive of killing the
deceased; the deceased was a child and was
residing separately to some other place and
the appellant was residing to some other
place; there appears force in the argument
of learned counsel for the appellant that no
one had seen the commission of crime,
there is no connecting link to indicate the
involvement of appellant in the commission
of crime, it is a case of circumstantial
evidence and the chain of evidence is
totally broken, the police has also failed to
complete the chain of evidence to connect
the appellant in the present crime; and
considering the larger mandate of the
Article 21 of the Constitution of India and
the law laid down by the Hon'ble Apex
Court in the cases of Kamal (supra),
Takht Singh (supra), and Dataram Singh
vs. State of U.P. and another, reported in
(2018) 3 SCC 22, this Court is of the view
that the appellant may be enlarged on bail.

15. Accordingly, the appeal is
allowed. Consequently, the impugned order
dated 19.10.2020 passed by learned Special
Judge,
SC/ST
Act,
Hardoi
in
Bail
Application No.1742 of 2020 relating to
Case Crime No.464 of 2019 under Sections
302, 201 and 363 I.P.C. and Section 3(2)(5)
12 All. Sunil Kumar Tripathi @ Guddu Vs. State of U.P. & Ors.
23
of SC/ST Act, Police Station-Atrauli,
District-Hardoi is hereby set aside and
reversed.

16. Let the appellant, Sunil Kumar
Yadav be released on bail in the Case
Crime No.464 of 2019 under Sections 302,
201 and 363 I.P.C. and Section 3(2)(5) of
SC/ST Act, Police Station-Atrauli, DistrictHardoi with the following conditions:-

(i) The appellant shall furnish a
personal bond with two sureties each of like
amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and
strictly comply following terms of bond executed
under section 437 sub section 3 of Chapter- 33 of
Cr.P.C.:-

(a) The appellant shall attend in
accordance with the conditions of the bond
executed under this Chapter.

(b) The appellant shall not commit an
offence similar to the offence of which he is
accused, or suspected, of the commission of
which he is suspected, and

(c) The appellant shall not directly or
indirectly make any inducement, threat or
promise to any person acquainted with the facts
of the case so as to dissuade him from disclosing
such facts to the Court or to any police officer or
tamper with the evidence.

(iii) The appellant shall cooperate
with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present
before the trial court on each date fixed, either
personally or through his counsel. In case of his
absence, the trial court may proceed against him
under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the
liberty of bail during trial, in order to secure his
presence, proclamation under section 82 Cr.P.C.
is issued and the appellant 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.

(vii) The appellant shall remain
present, 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 appellant 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.

17. It is clarified that the observations, if
any, made in this order are strictly confined to the
disposal of the prayer for bail and must not be
construed to have any reflection on the ultimate
merit of the case.

18. The trial court is also directed to
expedite the trial of the aforesaid case by
following the provisions of Section 309 Cr.P.C.,
strictly without granting any unnecessary
adjournments to the parties, in case there is no
other legal impediment.
----------
(2023) 12 ILRA 23
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.11.2023

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Revision No. 603 of 2009

Sunil Kumar Tripathi @ Guddu
 ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties