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Rakesh v. State Of U.P. - CRIMINAL APPEAL No. 113 of 2004 [2005] RD-AH 829 (22 March 2005)


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Court No. 46

Criminal Appeal No. 113 of 2004.

Rakesh Versus State of U.P.

Hon'ble R.C.Deepak, J.

Hon'ble M.K.Mittal, J.

The accused appellant Rakesh has prayed for release on bail during the pendency of Criminal Appeal No. 113 of 2004.

We have heard Sri M. L. Maurya, learned counsel for the accused appellant, Sri A.K.Singh, learned counsel for the complainant, Learned A.G.A for the State and have perused the record.

According to prosecution case, Anuj aged about 9 years son of Kamlesh Kumar was a student of Primary Pathsala, Sikrothi. On 8.2.2002 he had gone to School but did not return. The accused appellant Rakesh called Anuj in the lunch time at the back side of the School and took him to the Jungle. At that time, Vimal P.W.-3 was present and he brought the bag of Anuj to his house. The accused along with Anuj was seen by Srikant and Lalaram in the Jungle when they were returning from their fields to the village. When Anuj did not return, Laxmi Narain his grand father searched him and lodged a report of missing of Anuj at P.S. on 9.2.2002. On 8.2.2002 Kamlesh Kumar had gone to Kanpur and after his return he also searched the boy. The complainant and others even went to the house of Rakesh but he was not available. The accused Rakesh was arrested by the Police and on the basis of confessional statement and at his pointing the dead body of Anuj was recovered on 12.2.2002 at about 10.00 a.m., near the field of Sunder. The dead body was covered with leaves. However, the face, chest and both hands were eaten by the animals. The Investigating Officer prepared the inquest report and the dead body was sent for postmortem examination. Thereafter on the basis of confessional statement made by the accused and at his pointing an axe used in the murder of Anuj was  recovered from the 'Bandhi Bushes' near the field of Radhey Shyam. The chemical examiner found human blood on this axe. The dead body was identified by Ram Narain P.W.-4 on the basis of protruding umbilicus, underwear and the legs. Kamlesh Kumar and Laxmi Narain also identified the dead body.

Learned counsel for the accused appellant has vehemently contended that the accused has been falsely implicated and that the dead body was eaten by the animals and could not have been identified by the witnesses. He further contended that the prosecution witnesses are chance witnesses and are not reliable. According to learned counsel for the complainant and learned A.G.A., the dead body was recovered at the pointing of the accused and was identified by the witnesses. They further contended that no suggestion has been given to the investigating officer as well as Ram Narain that the dead body was not recovered at the pointing out of the accused or that it was not of Anuj. The testimony of Vimal P.W.-3, although a child witness  is reliable,  as the accused took Anuj in his presence. There is nothing in his statement to suggest that he is not stating the correct facts. Similarly Ram Narain P.W.4, who saw the accused taking Anuj towards Jungle is also reliable witness and nothing has come in his statement to show that his testimony is not reliable. The contention of the learned counsel for the accused appellant that the dead body could not have been identified cannot be accepted because the witness Ram Narain has made a positive statement that he  identified the dead body on the basis of protruding umbilicus. In this connection Prem Kumar P.W-5 has also stated that it was protruding out.

Learned counsel for the accused appellant has referred to paper Ex-(Ka-3) and contended that the dead body was recovered on 10.2.2002 itself and the accused was arrested thereafter and therefore it belie the prosecution case. But the perusal of this letter Ex-Ka-3 shows that this contention of the learned counsel for the accused appellant is not tenable. Although this letter was given by Laxmi Narain, the grand father of the deceased and there is mention that the dead body was recovered on 10.2.2002 but this letter is in a nature of complaint regarding ineffective investigation. The record shows that Ayodhya Prasad Mishra, P.W.-7, the initial investigating officer continued investigation up to 27.2.2002 and thereafter the investigation was entrusted to Ashok Kumar Singh P.W.-8 and he started investigation on  11.3.2002. Ashok Kumar Singh has stated that Laxmi Narain gave a letter Ex-Ka-3 to him on 14.3.2002. This statement of Ashok Kumar Singh has not been challenged by the defence. In the circumstances, the paper Ex-Ka-3 is of no help to the accused and on its basis it cannot be said that the dead body was recovered on 10.2.2002.

In view of the facts and circumstances of the case, but without prejudice to the merits of the appeal in any manner whatsoever, we are of the opinion that the accused appellant is not entitled to bail at this stage; therefore, the bail application is liable to be rejected.

Bail application of accused Rakesh is hereby rejected.

Dated:- 22.3.2005.



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