HONBLE RAJESH SINGH CHAUHAN,J. - (1.) Heard Ms. Samidha, learned counsel for the applicant, the learned Additional Government Advocate for the State and Sri Arun Sinha, learned counsel for the complainant.
(2.) This is the second bail application filed by the applicant (Dr. Naimish Trivedi), who is languishing in jail since 02.03.2016 in Case Crime No.0001 of 2016. under Sections 302, 34, 120-B and 420 of I.P.C., Police Station-Mahanagar, District-Lucknow.
(3.) The first bail application of the present applicant bearing Bail Application No.6874 of 2016 has been rejected by this Court on merits on 07.10.206. For convenience, the order dated 07.10.2016 is being reproduced here-in-below:- "Rejoinder affidavit filed on behalf of the applicant today in Court is taken on record. Heard Shri Kunwar Mirdul Rakesh, learned Senior Advocate assisted by Shri Santosh Kumar, the learned counsel for the applicant, Shri Arun Sinha, learned counsel for the complainant and the learned A.G.A. for the State as well as perused the record. The applicant- Dr. Naimish Trivedi has sought bail in Crime No. 01 of 2016, under Sections 302/34, 120-BIPC, relating to Police Station Mahanagar, District Lucknow. It has been contended by the learned Senior Advocate that the applicant is not named in the FIR. During the course of investigation the applicant was made accused in this case on the ground that prior to the alleged occurrence, the applicant had agreed to sell his house to the deceased for a sum of Rs. 7.5 Crores and had received more than one crore as advance. A deed of agreement was also executed between the applicant and the deceased. It is said that since the applicant did not execute the sale deed and the deceased was pressurizing him to receive the balance amount of sale consideration and execute sale deed, the applicant in order to get rid of the deceased, engaged shooters and got him murdered. The submission of the learned Senior advocate is that the motive as alleged by the prosecution is not sufficient to cause death of any person. Even if it is believed to be true that the applicant had agreed to sell his house and had also received advance money, the dispute was purely of civil nature and the applicant could not get benefit by the death of the deceased. With regard to the telephonic conversation and call details record, the submission of the learned Senior Advocate is that the said call record and telephonic conversation placed on record by the complainant with the counter affidavit, is not an authentic document and cannot be made basis of presumption that the applicant had conspired to kill the deceased. The applicant is a renouned Dental Surgeon having his clinic in Mahanagar and it cannot be presumed that he would conspire to kill the deceased. The learned Senior Advocate has referred to the statement of the witnesses, who have been interrogated during the investigation and has submitted that it has come in evidence that the complainant, who is the daughter of the deceased, had relation with Haseeb @ Asif and he was following the car in which the deceased and the complainant were traveling soon before the occurrence. There is every possibility that Haseeb might have conspired to kill the deceased because being Muslim, his relation and affair with complainant was objected by the deceased. It is also a submission on behalf of the applicant that the only evidence against the applicant is the statement of co-accused and as per the provision of the Indian Evidence Act, the statement of the co-accused cannot be read in evidence against the applicant. It has lastly been submitted that co-accused Adnan has already been granted bail by this Court vide order dated 16.6.2016. The learned counsel for the complainant as well as the learned Additional Government Advocate, both have vehemently opposed the prayer for bail on the ground that it is admitted that the applicant had agreed to sell his house situated at Mahanagar, Lucknow to the deceased for a sum of Rs. 7.5 Crores and had also received 1.5 Crore as advance. The deceased was the owner of the Ritz Hotel and he had been continuously requesting the applicant to receive the balance amount and execute the sale deed but since the applicant had no intention to sell his house, therefore out of advance money, he spent Rs. 5,00,000/- (Five Lakhs) to engage shooters and got the deceased killed so that he may get rid of the deceased. The learned counsel for the complainant has taken the court to the call details record and the telephonic conversation annexed with the counter affidavit and has submitted that it has come in evidence that one Subhash Yadav was acting as mediator and on the instructions of the applicant, he arranged the shooters, namely, Adnan Ahmad and Wasif @ Saif. It has also come in evidence that co-accused Adnan provided his firearum and the co-accused Wasif @ Saif using that firearm, killed the deceased. The co-accused Adnan was granted bail on the ground that the only allegation against him was that he provided his gun to the actual shooter but so far as the case of the present applicant is concerned, he is master mind of the crime and the call detail record as well as telephonic conversation, clearly reveal that he had engaged shooters to execute the crime. With regard to call detail records and the telephonic conversation, the submission of Shri Arun Sinha is that the investigation of this case was conducted by Special Task Force and the voice call as well as the call detail record was sent to the expert from where the same were verified. It has also been submitted by the learned counsel for the complainant that during the course of investigation the Investigating Officer of STF sought permission of the Court to take the sample of voice of the applicant in order to tally the telephonic conversation but the applicant refused to give the sample of his voice and this circumstance should be treated as adverse to the applicant. The learned counsel for the complainant has also pointed out that prior to the occurrence, one Pappu was contacted for commission of crime but after the crime was committed and he came to know that work was done by some one else, he started negotiations with the applicant and demanded money because he had suffered a loss on account of crime being committed by some one else. The conversation between Pappu and the present applicant is on record and has also been verified. With regard to the affair of the complainant with Haseeb, the submission on behalf of the learned counsel for the complainant is that even if it is found that the complainant was having affairs with some Muslim Boy, there is no evidence to the effect that he had planned to kill the deceased and he could have benefited by the death of the deceased. After having heard learned counsel for the parties and after having gone through the material on record but without expressing any opinion on merit of the case, I find that on the basis of evidence on record, the applicant has no case for bail at this stage, hence his bail application is rejected." ;