S.C.AGARWAL,J. - (1.) THIS is the first bail application on behalf of the accused-applicant Santosh Sharma involved in case crime no.293 of 2009 under sections 302, 201, 377 I.P.C. pertaining to police station Sarnath, district Varanasi. Heard Sri Manish Tiwary, learned counsel for the applicant, learned A.G.A. for the State on 21.5.2010 and perused the record.
(2.) LEARNED counsel for the applicant submitted that the victim was missing since 9.8.2009, but the F.I.R. was lodged on 13.8.2009 after recovery of the dead body. The evidence against the applicant is of last seen in the company of the deceased. It was submitted that had the witnesses seen the deceased going with the applicant and the co-accused, they would not have waited for four days in lodging the report against the applicant. It was further submitted that motive disclosed by the prosecution is that the victim was kidnapped for the purposes of committing unnatural offence with him, but postmortem report does not support this allegation. It was also contended that neck of the deceased was found cut at the level of 3rd and 4th cervical vertebra and this injury could not be caused by a razor. Learned A.G.A. submitted that the victim Pankaj Rajbhar - son of the complainant was a handsome boy of 12 years of age. The applicant and co-accused Rinku Sharma were friendly with the deceased. On 9.8.2009 at about 8:00 a.m., applicant and co-accused Rinku took away the deceased with them from his house. The deceased never returned. The witnesses asked both the accused about whereabouts of the deceased, but they did not give any satisfactory reply. On 13.8.2009, dead body of Pankaj was found in a Nala near Income Tax Colony. Thereafter F.I.R. was lodged. Both the accused committed unnatural intercourse with the deceased forcefully and on protest, the neck of the deceased was cut.
(3.) THE complainant had no enmity with the applicant and there is no reason for his false implication. The deceased was taken away from his house by the applicant and the co-accused on 9.8.2009. The postmortem was conducted on 14.8.2009 and it was found that the deceased died about five days ago i.e. on 9.8.2009. The applicant has not offered any explanation as to what happened to the deceased after he was taken away from his house. There was only a T-shirt on the dead body. Pant was missing and was ultimately recovered near the temple at the instance of both the accused. Not lodging F.I.R. regarding missing of deceased is not very material. Lodging of F.I.R. after recovery of dead body appears to be natural. The statement of doctor reveals that opinion about unnatural offence being committed with the deceased could not be given, as the body had decomposed.;