# Vinay Kumar Tiwari (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 315
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-21
- **Case number:** Crl. Misc. Ist Bail Application No. 48444 of 2020
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-tiwari-in-jail-v-state-of-u-p-47574
- **Pages:** 19

## Headnote

G.A.

A. Bail - The Court rejected the bail
applications on seeing that the nature of the
offence and the amount of culpability is
serious,
heinous,
shocking
and
unprecedented.
It
is
evident
from
the
discussions that the main accused persons
had prior information of the police raid which
was released by the police. This not only
made the accused person alert but also
provided them the fullest opportunity to
prepare for attack and commit such a
horrendous crime of killing 8 police personnel
including Circle Officer, who succumbed to his
injuries. Moreover, they are also accused of
having a good relationship with the main
accused. (Para 46)

Bail Application Rejected. (E-10)
316 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

## Text

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9 All. Vinay Kumar Tiwari Vs. State of U.P.
315
sight of the fact that death in police custody is
perhaps one of the worst kind of crimes in a
civilized society, governed by the rule of law
and poses a serious threat to an orderly
civilized society. Torture in custody flouts the
basic rights of the citizens recognized by the
Indian Constitution and is an affront to
human dignity. Police excesses and the
maltreatment of detainees/under - trial
prisoners or suspects tarnishes the image of
any civilised nation and encourages the men
in "khaki" to consider themselves to be above
the law and sometimes even to become law
unto themselves. Unless stern measures are
taken to check the malady of the very fence
eating the crops, the foundations of the
criminal justice delivery system would be
shaken and the civilization itself would risk
the consequence of heading, towards total
decay
resulting
in
anarchy
and
authoritarianism reminiscent of barbarism.
The courts must, therefore, deal with such
cases in a realistic manner and with the
sensitivity which they deserve, otherwise the
common man may tend to gradually lose
faith in the efficacy of the system of judiciary
itself, which if it happen will be a sad day, for
anyone to reckon with."

23. Considering the totality of the
case in particular, nature of evidence
available on record, I am not inclined to
release the applicant on bail.

24.

The
bail
application
is,
accordingly, rejected.

25. The party shall file computer
generated copy of such order downloaded
from the official website of High Court
Allahabad.

26. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

27.

The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing.
----------
(2021)09ILR A315
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 21.09.2021

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Crl. Misc. Ist Bail Application No. 48444 of 2020
connected with
Crl. Misc. Bail Application No. 49354 of 2020

Vinay Kumar Tiwari ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Satyendra Singh, Sri V.P. Srivastava
(Senior Adv.)

Counsel for the Opposite Party:
G.A.

A. Bail - The Court rejected the bail
applications on seeing that the nature of the
offence and the amount of culpability is
serious,
heinous,
shocking
and
unprecedented.
It
is
evident
from
the
discussions that the main accused persons
had prior information of the police raid which
was released by the police. This not only
made the accused person alert but also
provided them the fullest opportunity to
prepare for attack and commit such a
horrendous crime of killing 8 police personnel
including Circle Officer, who succumbed to his
injuries. Moreover, they are also accused of
having a good relationship with the main
accused. (Para 46)

Bail Application Rejected. (E-10)
316 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Cases cited:

1. Prem Chand (Paniwala) Vs U.O.I. AIR 1981
SC 613

2. Vineet Narain Vs U.O.I. AIR 1998 SC 889

3. Prakash Singh Vs U.O.I .(2006) 8 SCC 1

4. Dalvir Hussain Vs St. of Guj AIR 1991 SC 56

5. Pawan Kumar Vs St. of U.P. 2015 (90) ACC 9
(SC)

6. Mukesh Kumar Kashyap Vs St. of Uttarakhand
2015 (89) ACC 903

7. St. of U.P. Vs Rajju 2005 (53) ACC 343

8. K R Purushottaman Vs St. of Kerala 2006 (54)
ACC 255 (SC)

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. Since both the bail applications are
connected and arisen from same case crime
number,
therefore,
both
the
bail
applications are being disposed off by a
common order.

2. Heard Shri V.P. Srivastava, learned
Senior Counsel assisted by Shri Satyendra
Singh, learned counsel for the applicant
(Vinay
Kumar
Tiwari),
Shri
Shyam
Narayan Verma, Shri Anurag Pathak and
Shri Harshit Pathak, learned counsel for the
applicant (K.K. Sharma) and Shri Manish
Goyal,
learned
Additional
Advocate
General assisted by Shri Rajesh Mishra,
Shri R.P. Pandey, Shri Kaushalesh Prasad
Tiwari and Shri Mayank Mishra, learned
AGA, Shri Abhijeet Mukherjee, learned
Brief Holder for the State and perused the
record.

3. The present bail applications have
been filed by the accused-applicants Vinay
Kumar Tiwari and K.K. Sharma in Case
Crime No. 0192 of 2020, under sections
147, 148, 149, 302, 307, 504, 506, 353,
332, 333, 396, 412, 120B, 34 IPC, section 7
of Criminal Law Amendment Act and
section 3⁄4 of Explosive Substances Act,
P.S.- Chaubeypur, District - Kanpur Nagar.

4. In the year 1981, in Prem Chand
(Paniwala) vs Union Of India, AIR 1981
SC 613, Justice V. R. Krishna Iyer opened
the judgment with a question "Who will
police the police?" About 40 years have
passed, but, that question is still there with
a bigger question mark. On the date of
incident, the raid conducted by police force
was countered by the gangster Vikas
Dubey and member of his gang in a very
planned way and 8 police personnels
including Circle Officer of the area were
brutally
killed
and
several
police
personnels
sustained
serious
firearms
injuries. The accused persons were carrying
sophisticated firearms and the accusation
against the accused-applicants is that they
were in collusion with the gangster and his
associates. Under a conspiracy, they leaked
information of police raid and gave them
opportunity to remain in preparedness and
did not render due support to police
personnels nor informed the police force
regarding their preparedness to effectively
counter the raid and their being equipped
with sophisticated firearms.'

5. As per FIR version and police
papers, the brief facts are that on
03.07.2020, at 1 AM in the midnight, the
incident took place in respect of which on
the same day in the early morning at 5:35
AM, the FIR was lodged in which 21
accused persons were named with 60 to 70
unnamed
accused
persons
and
the
allegation was that an FIR was registered
on 02.07.2020, Crime No. 191/20, under
9 All. Vinay Kumar Tiwari Vs. State of U.P.
317
section 147, 148, 504, 323, 364, 342, 307
IPC and section 7 of Criminal Law
Amendment Act, 1932 against Vikas
Dubey, Sunil Kumar, Bal Govind, Shivam
Dubey and Amar Dubey. In order to arrest
the accused persons, with reference to GD
No. 5 at 00:27 AM midnight, SO Vinay
Kumar Tiwari with other SI and Constables
keeping weapon and cartridges reached at
Bela crossing, where, as planning CO
Bilhaur Shri Devendra Kumar Mishra with
other police officers along with Govt.
Vehicle and Driver and SHO Bithoor, Shri
Kaushalendra Pratap Singh with other
police officers along with Government
Vehicle
and
Driver
and
also
SHO
Shivrajpur, Shri Mahesh Yadav with SI and
Constables (all mentioned in the FIR by
name), after due consideration, set out from
the place in search and arrest of the accused
persons. Between the police parties of three
police stations mentioned above, in view of
fencing around the house of accused which
is surrounded by big walls of adequate
heights with barbed wire fencing and huge
iron gates in different directions, it was
decided that on reaching on the main gate
in the leadership of CO Bilhour, the police
will be divided into three teams. The first
police team was led by CO Bilhour, the
second by SHO Bithoor and the third by
SO Chaubepur. The police teams and
police officers ensured that there was no
illegal article with them. Thereafter, the
police party departed from Diwedi Atta
Chakki to Bikru village and the moment
they reached 20 meters close to the house
of accused Vikas Dubey (now dead), it was
found that on the road, a JCB machine was
standing horizontally in such manner that
the road was almost blocked. The police
party anyhow, from the remaining space,
managed to reach to the Tiraha close to the
house gate of accused Vikas Dubey. The
first police party lead by CO Bilhour
stopped at the gate and the second party led
by SO, Bithoor proceeded towards left side
in east direction, and from the right side
towards south direction the third police
group
led
by
SO
Chaubeypur
was
proceeding.

6. All the police personnels were in
police uniform except one Guard who was
in civil dress. There was sufficient light of
electricity and dragon light. Suddenly, from
the room situating on the first floor on the
north east side from the roof of Vikas
Dubey, accused Vikas Dubey and other coaccused persons with rifle, pistol and
firearms in their hands, in a preplanned
way, with intention to kill the police
personnels, opened fire shouting loudly
how the police personnels dared to raid and
nobody would escape alive from this place.
Side by side, from the roof of Raja Ram
alias Prem Kumar Pandey, situating in front
of the house of accused Vikas Dubey, Prem
Kumar Pandey and other accused persons
Shyam Bajpai, Chhotu Shukla, Monu,
Jahan Yadav and others, and from the roof
of the house of Atul situating in the west of
the house of accused Vikas Dubey, Atul
Dubey, Dayashankar Agrahari, Shashikant
Pandey, Shiv Tiwari, Vishnu Pal Yadav,
Ram Singh, Ramu Bajpai and other coaccused persons opened firing in a planned
way with intention to kill the members of
the police party. Because of this sudden
and indiscriminate firing, most of the
policemen of the first group and second
group were seriously injured. Some of the
members of police party after positioning
themselves proceeded towards the house of
Rajaram Pandey and some proceeded
towards the open land of Pappu Mishra. At
the same time when the police party was so
proceeding, the accused persons from the
roof of their house came down and started
firing on already injured police personnel.
318 INDIAN LAW REPORTS ALLAHABAD SERIES
The police party led by SO Caubeypur,
because of indiscriminate firing, did not
proceed further. There was no place to
shelter and there was regular firing by the
main accused persons from the roof. They,
therefore, covered the firing in order to
reach at a safe place. The accused persons
coming from all sides surrounded the
police personnel, fired and killed SI Anoop
Kumar Singh Chawki in-charge Mandhana,
Constable Jitendra Pal, Constable Bablu
Kumar, Constable Rahul Kumar and
Constable Sultan Singh by causing gunshot
injuries. In the varanda of the house of
accused Rajaram Pandey, SO Shivrajpur,
Shri Mahesh Yadav and SI Nimbu Lal were
also killed by the accused persons. CO
Bilhour was dragged inside the house of
Prem Kumar Pandy by accused Vikas
Dubey, Prem Kumar Pandey, and Amar
Dubey, Prabhat Mishra, Gopal Saini, Heeru
Dubey, Bauwan Shukla, Shivam Dubey,
Balgovind, Bauwa Dubey, and other coaccused persons and was killed brutally by
them by causing injuries by fire arms and
sharp weapons.

7. Meanwhile, remaining members of
first, second and third police party, in their
self-defense, started firing and saved 7
police personnels including SO Bithour,
Shri Kaushalendra Singh, SI Sudhakar
Pandey, Constable Shiv Moorat Nishad,
Home
Guard
Jai
Narayan
Katiyar,
Constable Ajay Kumar Kashyap, Constable
Ajay Singh Sengar and took them to safe
place. During the incident the accused
persons looted the Govt. pistol of injured
SO Bithour, but because of cover firing
caused by the police party, the accused
persons could not succeed in causing death
of SO Bithour, Kaushalendra Singh. The
accused persons looted the Government
arms form the police personnels and
absconded away. The alive policemen, in
the light of electricity and other light,
recognized the accused persons. Injured
policemen were admitted in the Regency
Hospital for their treatment. Thereafter, the
police reached at the place of occurrence
and found the dead body of the policemen
lying there. 9MM pistol with 10 cartridges
of SO Mahesh Chandra Yadav, 9MM pistol
with 10 cartridges of SI Anoop Kumar
Singh, AK-47 with 30 cartridges of
Constable Jitendra Kumar, insas rifle with
20 round cartridges magazine of Constable
Sultan Singh were already looted by the
accused persons during incident. Besides
the named accused persons, there were 60
to 70 more armed accused persons who in a
very
planned
way,
initially
hiding
themselves at a high place, with intention
to kill the policemen, caused fire and
subsequently, they jumped down from the
roof and from very close range they
committed brutal murder of the policemen.
The policemen also fired, but, because of
this incident and indiscriminate and daring
firing by the accused persons, a situation of
lawlessness and sense of fear was created.
The accused persons were led by accused
Vikas Dubey was a known gangster and
history sheeter of the area and there
remained fear and terror of the gangster and
his gang around the vicinity. Because of the
criminal activities, the gang had gained a
lot of movable and immovable properties.
The
police
inspected
the
place
of
occurrence where cartridges were scattered
here and there and the sign of firing was
also present on the walls around and other
places. Human blood was also scattered all
over the place. On this basis, the FIR was
lodged by SO Vinay Kumar Tiwari, who is
presently one of the accused applicants.

8. The statement of informant was
recorded by the Investigating Officer. The
dead
bodies
were
also
taken
into
9 All. Vinay Kumar Tiwari Vs. State of U.P.
319
possession, inquest report was prepared,
dead bodies were sealed and were sent for
postmortem. The statement of SI Azhar
Ishrat was recorded on the same day who
stated in accordance with the FIR version.
Thereafter, the statement of SI Vishwanath
Mishra, P.S. Chaubepur, was also recorded
who also stated to the tune of FIR and had
additionally stated that from the roof of the
house of the Vikas Dubey some women
were loudly shouting that no police
personnel should escape today and they
were instigating the accused persons to kill
the policemen. These women were Smt.
Chhama,
Smt.
Khushi,
Smt.
Rekha
Agnihotri, a maid of accused Vikas Dubey
who used to live in the house of accused
Vikas Dubey and she was also involved in
his criminal activities.

9. Thereafter, SO Vinay Kumar
Tiwari was suspended by order dated 4th
July, 2020 of SSP, Kanpur Nagar on
account of his inaction, suspicious role and
for not apprising the police force about the
kind and quality of weapon accused Vikas
Dubey and the members of his gang were
keeping, nor he apprised about the way to
get away from the place of occurrence. It
was also found that when the firing started
from the side of accused persons, the
applicant did not lead his team and escaped
from the place. Because the police
personnels were not having any knowledge
about the way to get away from the place, a
number of them were killed and in a great
number sustained injuries.

10. The IO recorded the statement of
constable Rajeev Kumar who stated to the
tune of SI Vishwanath Mishra and further
added that SI Krishna Kumar Sharma and
SO Vinay Kumar Tiwari of the police
station were closely related with accused
Vikas Dubey and prior to the incident, SI
Krishna Kumar Sharma talked with Vikas
Dubey for 20 minutes on mobile. He has
also stated that these police officers
(accused-applicants) were conspired with
accused Vikas Dubey to humiliate and give
lesson to CO Bilhour out of jealous and bad
relationship.

11. Statement of constable Abhishek
Kumar was also recorded and he also stated
that SI Krishna Kumar Sharma and SO
Vinay Kumar Tiwari were closely related
with accused Vikas Dubey. He has also
supported the statement of Constable
Rajeev Kumar on that point. Statement of
co-accused
Suresh
Verma
was
also
recorded and he also stated in similar
fashion showing the closeness of these two
with accused Vikas Dubey and the prior
talk with SI Krishna Kumar Sharma with
him just before 20 minutes from the time of
incident.

12. SI Azhar Ishrat was again
examined by the IO, and despite that he
supported the FIR version, he also stated
about the involvement of the women who
instigated
the
accused
persons
for
commission of the offence and said that he
saw Sanjay Dubey @ Sanju who was firing
on the police party who was known to him
because he used to come to the police
station
regularly.
Co-accused
Suresh
Verma was also instigating the other
accused persons. On being asked by the IO,
he stated that SI K.K. Sharma was not
present there during the raid who was
present in the police station but deliberately
did not join the raid. He was asked to join
but he avoided. He had already given
information about the raid much before the
time of incident to gangster Vikas Dubey
with whom he was closely related. He has
also stated that he knew the accused
persons with name because he is posted in
320 INDIAN LAW REPORTS ALLAHABAD SERIES
the police station from the last about 3
years and he had gone to the village of
Vikas Dubey several times in respect of his
official duty and Vikas Dubey and his other
associates were well known to him. He saw
and recognized the accused persons in the
solar light which is installed at the main
gate of Vikas Dubey and also in the light
on the roof of the house of Vikas Dubey,
Prabhat Dubey, Gopal Ji Saini, Govind
Saini, Raja Ram @ Prem Kumar Pandey.
He identified the other accused persons
going from the side of house of Agar
Dubey to the house of Vikas Dubey. The
witness has stated that he also fired 7 times
but realizing that by firing his location will
be
exposed,
he
stopped
firing
and
concealed himself in the veranda of the
neighbour of the Prabhat Mishra. Constable
Navneet also concealed himself there.
Thereafter there was power cut and Prabhat
Mishra who was firing from his roof came
down with his rifle and seeing them, he
fired on Constable Navneet but because the
witness intervened by slapping on the but
of rifle, constable Navneet escaped and
thereafter he and constable Navneet,
because they were fully acquainted with the
geographical situation, through the field,
came to the road. The JCB driver was
Rahul Pal and not Monu as he had stated
earlier. He has named the accused persons
who fired on the members of the police
party.

13. Subsequent statement of SI
Vishwanath Mishra was recorded and he
has given detailed statement and besides
that he supported the FIR version, he has
also stated that the accused persons were
firing from the roof of Prabhat Mishra. He
has stated that Vikas Dubey was a known
criminal and, in the area, he used to possess
and grab lands of others with the help of
police. He used to create terror and
organize gambling. SO Vinay Kumar
Tiwari was in his contact through SI K.K.
Sharma and they used to regularly associate
with them. This came in the knowledge of
CO Bilhour and he had submitted adverse
report about them to the superior authority.
On the date of incident, K.K. Sharma
deliberately avoided in participating in the
raid and during the period he was regularly
in touch with the accused persons. He and
SO Vinay Kumar Tiwari just to lower
down the image of CO Bilhour, conspired
with the criminals and consequently 8
police persons were killed and 7 police
persons sustained serious injuries.

14. SI Ajhar Ishrat was re-examined
by IO and he also stated that the accused
persons were well informed about the raid
which is also clear from electronic
surveillance and other evidence. The
relationship between SO Chaubepur and
Circle Officer was bad and the CO had sent
adverse report regarding misconduct of SO
Vinay Kumar Tiwari to superior officer. He
stated that SI K.K. Sharma and SO Vinay
Kumar Tiwari were in contact with accused
Vikas Dubey and used to regularly
associate with him and therefore, the
accused persons succeeded in causing such
a horrible incident only because SI K.K.
Sharma and SO Vinay Kumar Tiwari
leaked the information about raid to them.
He has also stated that he recognized the
accused persons in the road light and
accused persons were also lighting torch
from their roof and were shouting.

15. Certain call details have been also
annexed at page 156 and onward showing
that accused-applicant K.K. Sharma had
talked with the gangster and his gangmen.
The learned counsels for the applicants
have contended that constable Rajeev
Kumar was also in touch with Vikas
9 All. Vinay Kumar Tiwari Vs. State of U.P.
321
Dubey.
The
audio
conversation
of
Constable Rajeev Kumar with Vikas Dubey
has also been annexed to show that he was
in regular touch with Vikas Dubey and he
has not been made accused. Constable
Rajeev Kumar has been subsequently
examined and he has stated that Vikas
Dubey was having prior knowledge of the
police raid and he rang him on mobile
phone but, being occupied in work, he
could not pick up the same and when he
saw that there was miss call of Vikas
Dubey, he dialed him and Vikas Dubey
gave a lot of threatening and abuse and
threatened that he will kill all the police
personnels who will be found on the police
jeep and he would commit such a big
offence which will be unprecedented. The
witness has stated that he recorded the
phone call and told about this threatening to
Vinay Tiwari, SO, Chaubepur and also said
that the gangster has prior information of
police raid, but, SO Vinay Tiwari ignored
and did not take him seriously. He was also
accompanying SO Vinay Tiwari during the
raid. He recognized most of the accused
persons. He has stated that Chhama Dubey,
Khushi Dubey and Shanti Devi from the
roof of Atul Dubey were disclosing the
location of police personnels to the accused
persons and were instigating them to kill
the
policemen.
The
accused
persons
continued firing from 1 AM in the night for
30 to 35 minutes.

16. From the description above, it is
clear that 8 police personnel including the
Circle Officer were brutally murdered by
the accused persons and 7 police personnel
sustained serious injuries. The accused
persons who were named in the FIR with
60-70 more accused persons constituted
unlawful assembly with firearms and
deadly
weapons
killed
eight
police
personnels in a brutal way and injured the
police personnel very badly by causing
firearm injuries. Some of the police
personnels were killed and part of their
limbs was also separated from body. The
police witnesses who were one time
colleagues of the accused applicants have
given statement that the accused applicants
were very close to gangster Vikas Dubey
and his gangmen and they leaked the
information of raid which gave opportunity
to the accused persons to prepare and plan
the brutal murder of the police personnels.

17. Submission of the learned Senior
counsel for accused applicant Vinay Tiwari
is that there is no direct or indirect evidence
against him. It was a police raid conducted
by the police party which was countered by
the main accused persons and in the
incident 8 police persons were killed by
gunshot injuries and 7 policemen also
sustained gunshot injuries. The accused
applicant was himself leading one of the
police party. He himself lodged the FIR
against the main accused persons and he
also lodged FIR on the basis of information
given by Rahul Tiwari implicating them.
Therefore, it has been submitted that there
is no question of the accused-applicant
being involved in the commission of the
offence. He has no motive nor there was
any reason for him to enter into so called
conspiracy which resulted in such a
heinous crime. Further submission is that
the witnesses have changed their version
when they were subsequently examined by
IO and all of them in a tutored way have
stated about the closeness of the accusedapplicants with gangster Vikas Dubey and
his gang. There is no substantial evidence
and there is only some scattered evidence
against the accused applicants which is
insufficient for the accusation of criminal
conspiracy. Nothing can be concluded
against them on the basis of CDR,
322 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly against SO Vinay Tiwari who
never made any communication on mobile
with either Vikas Dubey or his gangmen.
There is no such CDR collected by the
Investigating Officer.

18. It has been further submitted that
the applicants have been falsely implicated.
Late CO Devendra Mishra was informed
about the incident of Rahul Tiwari who
directed him not to make entry in GD as the
police is going to take stern action and this
will alert gangster Vikas Dubey. The
policemen including CO Devendra Kumar
Mishra were posted there for much longer
period and were well-versed with history
sheeter
Vikas
Dubey.
The
accusedapplicants had no cordial relation with
them. The said viral letter of CO indicating
close relation is forged and has been
obtained from social media. No such letter
was sent by CO Mishra to SP, Kanpur
Nagar nor the applicant was put to any
departmental
proceeding
nor
any
explanation was asked from him. It has also
not been mentioned in his suspension order.
The allegations regarding his conduct
during raid are vague, imaginary and false
and is not supported by any evidence.

19. On the contrary, the learned
additional Advocate General Shri Manish
Goyal has argued that it is not a case of
simple crime and the crime has been
committed because the police assisted the
gangster and leaked the information with
regard to raid and, because of the prior
information about the raid, the gangster
was in preparedness and he planned the
murder of the policemen and it is why so
many accused persons assembled with the
main accused and were active at the time of
raid. They were inhabitants of area falling
within the same police station in which
house of the gangster situated and where
the incident took place. Being the member
of police force and working at the local
police station, the accused-applicants had
enough information about the geographical
situation and path ways around the vicinity.
The police force reached to the place of
gangster and could not get away from the
place as the accused applicants did not
render
support
nor
cooperated
and
remained inactive. The role of SI K.K.
Sharma is rather evident in view of the fact
that he was regularly in touch with Vikas
Dubey and his gang and through him SO
Vinay Tiwari was also in his touch. Both
the accused applicants certainly helped
them and always closed their eyes towards
the criminal activities of the gang. They,
during the incident, maintained distance
from the other police party and went away
to save themselves. In case of such an
organized crime where members of police
force were assisting the gangster and his
group, it is not possible to have a direct
evidence.
Moreover,
in
a
case
of
conspiracy, there is no possibility of direct
evidence. The evidence which can be
available is only circumstantial in nature
and may be in the form of inaction on the
part of the accused applicants who, in their
endeavor to assist the accused persons, kept
themselves out from the picture. Therefore,
the conclusion of conspiracy is to be drawn
from the circumstances of the case and the
situation that the applicants, being member
of police force, were indulged in assisting
gangster Vikas Dubey and his gang, and all
the paper work was done by them. It has
been submitted that the IO examined
several witnesses of police force who
worked with the accused applicants and
they have stated about conspiracy and their
close links with the gangster and his gang.

20. Moreover, it has been also pointed
out on behalf of the State that, on being
9 All. Vinay Kumar Tiwari Vs. State of U.P.
323
arrested, gangster Vikas Dubey gave
statement to the IO revealing that the
accused applicants used to give prior
information of police activities and on the
date of incident also he was informed about
the police raid. The gangster is dead and his
statement given to police is legally
admissible as the same is statement of a
dead man. Therefore, it has been submitted
that taking into consideration over all
circumstances, the culpability is writ large
and the accused applicants do not deserve
to be released on bail.

21. This case raises certain serious
questions which relate to administration of
criminal justice system in the country with
reference to organized crime and criminals
and the role and efficiency of police force
in combating the problem. The police force
is one of the most important force with
great potential, easily approachable to the
people facing criminal wrong and law and
order problem and the most visible
component of the criminal justice system.
Like other departments, there has been a
general fall and deterioration in the
standard of functioning of the police force
also. With time, it has been seen that the
police force, not as a whole, but in small
groups, has gone through a phase of moral
and professional deterioration. There are
black sheep also in the police force and
they reflect upon the whole department
which has led to growing concern, and a
number of attempts have been made to
mend this situation. In this direction, the
past few years have been particularly
eventful, with a number of positive
developments having taken place towards a
solution of the problem and the state
appears to have observed zero tolerance
policy
towards
organized
crime
and
criminals. Strict and rigorous steps have
been taken to break and demolish financial
network of gangsters. In future, this shall
certainly bring about more and more
positive results towards restricting criminal
activities and organized crime.

22. Organized crime is not confined
to a single state, or any one country and has
become an international problem in view of
their wide spread network and sometimes
they have been also found to be a natural
ally of terrorist groups. Organized crime is
an
act
of
threat
involving
murder,
kidnapping, gambling, arson, robbery,
burglary, extortion or dealing in narcotics
or dangerous drugs and other crime. The
basic features of organized crime involves
a group of individuals that is structured,
sophisticated and widely spread across
nations; it is a section of society that seeks
to operate outside control of the people and
government and it is a self-perpetuating,
continuing criminal conspiracy for profit
and power, using fear and corruption and
seeking protection from law. The focus
areas of organized crime are smuggling,
drug
trafficking,
women
and
child
trafficking, arms trade, hawala, circulation
of fake currency, extortion and contract
killing. With financial solidarity, these
criminals have entered into business of film
financing, hotel business, house building,
government contracts and the like. The
gangsters are divided into three categories,
namely, sharp shooters, money collectors
and liaison agents. The liaison agents deal
with lawyers and law enforcement officials
to resolve legal problems and to ensure
easy bail to gangsters. (For details see S M
Sharma The Organized Crime in India,
Tokyo: United Nations Asia and Far
East Institute (UNAFEI), 1999, Vol. 54,
pp 24,88)

23. The police force faces some real
difficulty in combating with organized
324 INDIAN LAW REPORTS ALLAHABAD SERIES
crime and criminal activities. The police
personnels are mostly not provided with
that kind of sophisticated arms which are
available in plenty to the gangsters and
their gang members. The police stations are
mostly under-manned and the strength of
police
force
is
remarkably
less
in
comparison to the population. The police
has to act in accordance with legal norms
and while acting so, they are required to
avoid any excesses and human rights
violation. They have to behave like a
disciplined force actuated to uphold rule of
law and motivated by sense of public
security and service. The force also face the
problem of some police personnels who
may be close and in collusion with the local
mafia. They can leak the confidential
informations and strategy of police for
taking action and conducting raid to arrest
the gangsters. On the contrary, the
organized criminals keep with them all
kinds of sophisticated weapons, they use
the same indiscriminately and they can
cause any amount of damage to the human
life and property. Where they are having
support from some members of police
force, their potential to execute criminal act
is adequately enhanced.

24. The problems of police force has
been time and again highlighted by several
Law Commissions appointed for making
recommendations for police reforms and
needless
to
point
out
that
several
recommendations have been suggested
from time to time. It is pertinent to mention
that the Supreme Court has also issued
directions in view of recommendations in
some of the judgments such as Vineet
Narain v Union of India, AIR 1998 SC
889 and Prakash Singh v Union of India,
(2006) 8 SCC 1. Professor M P Singh, in
his book Police Problems and Dilemmas
in India 10 (1989) has discussed the
fundamental complexities of Indian police
system and has remarked that the police in
the country faces tremendous challenges
and works under extreme pressure due to a
number of reasons such as growing
unemployment, deterioration in educational
environments, conflicting claims of socioeconomic
components,
fluctuations
in
political order, rampant corruption etc.
Frequent transfers to unfavorable positions
or locations have demoralizing effects on
the police force and it becomes a survival
technique
for
police
to
have
close
relationship with one or other political
person.

25. The purpose of the above
discussion is to show the prevalent
conditions in which the police has to
perform the complicated and difficult job
of ensuring law and order, maintaining
security and peace, preventing crime and
taking action against and causing arrest of
offenders. These all require home work and
team work and if any member of police
force starts giving clues about and leak the
police strategy, the strategies are bound to
fail and shall certainly result sometimes,
particularly when police is confronting
against organized crime and criminals, in
disastrous situation as has resulted in this
case. In such situation, policing such police
personnels is a big task and it requires early
identification
of
such
black
sheep,
monitoring of their conduct, isolating them
and taking immediate strict disciplinary
action against them.

26. Now coming to the facts of this
case. The accusation against the accusedapplicants is that they had close friendly
relationship with the gangster Vikas Dubey
who and the members of his gang were
running organized criminal activities of all
sorts and was residing and flourishing
9 All. Vinay Kumar Tiwari Vs. State of U.P.
325
within the local jurisdiction of the police
station in which both the applicants were
posted. IO has examined several witnesses
and they have stated about the close
relationship of the applicants with the
gangster
Vikas
Dubey
and
gang.
Submission of the learned senior counsel
and other counsel for the the applicants is
that the witnesses have stated against the
applicants only when they have been
examined subsequently on second and third
time and their subsequent statement is after
thought to meet the case against the
applicants. Otherwise, the witnesses had
not stated anything against the applicants.

27. It is pertinent to mention that
gangster Vikas Dubey was arrested in
Ujjain and while he was being brought to
Kanpur Nagar, the Investigating Officer
took his statement. On the way, the police
vehicle suffered accident. Vikas Dubey
snatched the pistol of IO and attempted to
run away from the police custody. He
opened fire on police personnels and by
police firing in self-defense, he was shot
dead. The IO got hospitalized and after
being discharged, he wrote the said
statement of Vikas Dubey in CD. Some of
the part of his statement has been also
quoted in the bail application. In brief,
Vikash Dubey, giving detailed description
of the incident, has stated to the IO that on
2/3.07.2020, he had prior information of
police raid at about 04:00 PM and the
information was given by SI K.K. Sharma.
The JCB of Sultaan Ahmad was working
there from the last one and half months and
in the night at about 12:00 PM, he called
upon driver Rahul Pal with JCB and he got
obstructed the road by JCB so that the
police suddenly might not come to his
house. He further stated that one Rahul
Tiwari was harassing him by giving false
complaints against him and the police was
also supporting him. Therefore, hatred was
generated in him towards the police and he
had decided that he might be killed but he
will give lesson and kill as many as police
personnels as he can. He called his
associates Raja Ram @ Prem Kumar
(maternal brother), Shashi Kant, Shyamu
Vajpayee, Chotu Shukla, Jahaan Yadav,
Atul Dubey, Daya Shanker Agnihotri, Shiv
Tiwari, Vishnu Pal Yadav, Ram Singh,
Ramu Vajpayee, Amar Dubey, Prabhat
Mishra, Gopal Shaini, Govind Shaini,
Dharmendra @ Jeeru Dwivedi, Manish @
Veeru
Dwivedi,
Dheeraj
@
Dheeru
Dwivedi, Vitul, Uma Kant @ Guddan
@Bada Bauwan, Shivam Dubey, Bal
Govind Dubey, Pauwa @ Pradhan Dubey,
Shivam @ Dalal, Nandu Yadav and Balloo
Musalmaan. Licence holders came with
their arms and to the remaining persons, he
provided guns, country made pistols and
cartridges. CO, Bilhaur, Devendra Mishra
was behind him and, therefore, he was
brutally killed. He was having animosity
with SO, Shivrajpur also as in February,
2020, in the election in Kota, his nephew
Aman Tiwari was contesting election and
SO Shivrajpur got his man arrested with
illegal pistol whereupon he felt very
humiliated. His close companions were on
the roof with arms and he had made
planning on every pathway coming to his
house to kill the police personnels.
Fortunately, the police force came from the
way on which J.C.B. was planted and it
made the task very easy and they
surrounded the police officials and killed
them. When there was power cut, he used
code words which was a signal to run away
from the place. He had also intended to kill
his distant associates in order to implicate
the police force but this could not happen.
The women of his family and close to him
such as Rekha Agnihotri, Kshama, Khushi,
Shanti Devi were told to cry seeing the
326 INDIAN LAW REPORTS ALLAHABAD SERIES
police personnel as "thief-thief". Manu
Pandey was also having the knowledge of
planning. Thereafter, with the help of his
close associates, he went to Ujjain Mahakal
Temple.

28. Submission, in this respect, from the
side of accused-applicants has been two fold-
that the statement of Vikas Dubey is not
relevant against accused-applicants as he was
the prime accused in the FIR and secondly,
he did not state any thing against SO Vinay
Tiwari and has only taken the name of SI K
K Sharma. From the side of State, it has been
contended that the statement of Vikas Dubey
is statement of a dead man and it has legal
effect under section 32(3) of the Indian
Evidence Act. Moreover, other witnesses
have stated that SO Vinay Tiwari was very
much close to Vikas Dubey through SI K K
Sharma and therefore, the statement can be
well considered against both the applicants.
Section 32(3) provides as follows:

"32 Cases in which statement of
relevant fact by person who is dead or cannot
be found, etc, is relevant. --Statements,
written or verbal, of relevant facts made by a
person who is dead, or who cannot be found,
or who has become incapable of giving
evidence, or whose attendance cannot be
procured without an amount of delay or
expense which, under the circumstances of
the case, appears to the Court unreasonable,
are themselves relevant facts in the following
cases:--(3) or against interest of maker.