Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34558 of 2021 Applicant :- Abhishek @ Polard Opposite Party :- State of U.P.
Counsel for Applicant :- Adesh Kumar,Barkha Chaudhary Counsel for Opposite Party :- G.A.,Akash Tomar
Hon'ble Samit Gopal,J.
Heard Sri Adesh Kumar, learned counsel for the applicant, Sri Akash Tomar, learned counsel for the first informant, Sri Satish Pandey, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Omwati, seeking enlargement on bail during trial in connection with Case Crime No. 128 of 2021, under Sections 147, 148, 149, 302, 201, 341 I.P.C., registered at P.S. Mawana, District - Meerut.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present case is a case of circumstantial evidence and there is no eyewitness to the murder. The implication of the applicant is on the basis of the information given by Bachan Singh and Parik @ Vikky that they had seen the applicant, co-accused Anuj, Omkar and Mahipal travelling on a 'Buggi' carrying a gunny bag towards the pond, which was wet. Later on, the dead body of the deceased Abhishek was recovered from the said pond in a gunny bag. It is argued that the statement of Parik @ Vikky was recorded after 14 days of the incident. One Shiv Kumar @ Shibbu was introduced as a witness and he stated that on the night of the incident at about 10 p.m. he had seen the deceased going to the house of the accused persons and on the same night at 11.30 p.m. he had seen the applicant and co-accused persons carrying a gunny bag in a 'Buggi'. It is argued that delayed disclosure of the said fact is an afterthought just to harass and implicate the applicant. It is argued that motive as given in the present matter is of a love affair of the deceased Abhishek with the daughter of co-accused Anuj Kumar due to which it is stated that the deceased was called to the house of the accused persons and then done to death. Learned counsel for the applicant, by placing reliance on paragraph 30 of the affidavit in support of the bail application, argued that the applicant is a distant relative of co-accused Mahipal, who was the grandfather of the said girl. It is further argued that the applicant is involved in one other criminal case in which he has been granted bail. The disclosure and explanation has been given in paragraph 29 of the affidavit. It is argued that joint recovery on the pointing out of all the accused persons is of a belt and 'danda' from the house of co-accused Mahipal Singh but there is no independent witness of the said alleged recovery. It is argued that the co- accused Mahipal Singh and Anuj Kumar, who are the grandfather and father of the said girl, have been granted bail by a co-ordinate Bench of this Court vide orders dated 29.11.2021 & 17.12.2021 passed in Criminal Misc. Bail Application Nos. 36672 of 2021 & 53463 of 2021 respectively, which have been produced before the Court and are taken on record. It is argued that the applicant is in jail since 28.3.2021.
Per contra, learned counsel for the State and learned counsel for the first informant opposed the prayer for bail and argued that the applicant is named in the first information report and there is evidence of his being with co-accused of carrying something in a gunny bag from which blood was oozing. Later on, the dead body was recovered from the pond. It is argued that as such the applicant is involved in the present matter, therefore, the bail application may be rejected.
After having heard learned counsel for the parties and perusing the records, it is apparent that the present case is a case of circumstantial evidence. There is no eyewitness to the murder. Co-accused Mahipal Singh and Anuj Kumar have been granted bail by a co-ordinate Bench of this Court. The applicant is a distant relative of Mahipal Singh and Anuj Kumar, who are the grandfather and father of the said girl.
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 and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant be enlarged on bail.
Let the applicant- Abhishek @ Polard, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
1. The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
2. The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
3 The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
4. The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant 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 I.P.C.
5. The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant 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 and the trial court may proceed against him under Section 229-A IPC.
6. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
Order Date :- 20.12.2021 nd (Samit Gopal, J.)