Court No. - 44
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23533 of 2019 Applicant :- Akash Tiwari @ Rahul Tiwari Opposite Party :- State Of U.P.
Counsel for Applicant :- Pradeep Kumar,Govind Kumar Saxena Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Sri Saumitra Dwivedi, Advocate has filed Vakalatnama on behalf of the first informant, which is taken on record.
Heard learned counsels for the applicant, learned AGA for the State and learned counsel for the first informant and perused the record.
By means of this application, the applicant, who is involved in case crime no. 1525 of 2018, under Sections 302, 364, 201 IPC, P.S. Naini, District- Allahabad, is seeking enlargement on bail during the trial.
Filtering out unnecessary details, the prosecution case in brief is that the informant Gyan Chandra Verma (father of the deceased) lodged FIR on 29.12.2018 at 00.50 hours regarding the alleged incident dated 27.12.2018 at 23.30 hours registered as Case Crime No. 1525 of 2018, under Section 364 IPC against the applicant at Police Station Naini, District Prayagraj alleging that his two sons Aman Gupta and Aryan Gupta alongwith Priyanshu Gupta (son of neighbour of the informant) were living on rent in the house of father of the applicant. On 27.12.2018 at about 11.30 in the night when informant went to meet his sons then his son Aman was not there and he was told by his second son Aryan and Priyanshu Gupta that Aman had gone with the applicant. He asked about the applicant from his father, who in turn asked the applicant about Aman but the applicant said that he is not aware about the Aman. When Aman did not trace out, then he lodged FIR. Further as per prosecution case that on 28.12.2018 at about 7.30 AM, the villagers of village Atarsuiya had spoted the corpse of unknown person in the field of one Murari Kesharwani. Information about the said corpse was given by the Gram Pradhan to the Police Station Naini. Thereafter, the police reached at the spot and after taking the photographs of dead body inquest proceedings was done and dead body was sent for conducting the post mortem. The said corpse was identified by the informant as his son Aman.
Thereafter, post mortem of the deceased was conducted on 29.12.2018 at 12.10 PM. On the body of the deceased one fire arm entry would on anterior aspect of proximal thigh of left side, one firearm exit wound on left leg posterior aspect and multiple abrasions were found. It is alleged that the applicant was arrested on 1.1.2019 on the pointing out of informer and upon such pistol of 32 bore and two live cartridges were recovered from the possession of the accused-applicant. At that time, the applicant confessed his guilt that he has committed crime as alleged in the FIR dated 29.12.2018. During investigation, Sections 302 and 201 IPC were also added and charge-sheet has been submitted on 28.3.2019.
On the aforesaid prosecution case, learned counsel for the applicant submitted that:-
(i) The applicant has been falsely implicated in this case.
(ii) The statement of the most natural witness Aryan Verma was recorded under Section 161 Cr.P.C. on 14.2.2019 after much delay of about 1 and 1/2 months.
(iii) The statement of another witness Priyanshu Gupta was recorded under Section 161 Cr.P.C. on 18.3.2019 after more than 2 and 1/2 months of the incident.
(iv) There is no direct or indirect evidence against the applicant for committing alleged murder of the deceased.
(v) There is no motive assigned against the applicant.
(vi) The post mortem report also do not support the prosecution case, as only one gun shot injury, which is said to be on thigh region and not on any vital part of the body so as to cause death of the deceased.
(vii) The post mortem of corpse was conducted as unknown male body.
(viii) The statement of witnesses of inquest were recorded on 2.2.2019 after about three months.
(ix) During investigation, the Investigating Officer while recording the statement of Aryan Verma concocted the prosecution case by adding the name of Mukesh Tiwari and Tanngure @ Arun Dubey accompanying the applicant, which also belies the prosecution case.
(x) It is a case of circumstantial evidence and the maximum evidence of last seen has come on record against the applicant.
(xi) The applicant has never confessed his guilt, such statement of the applicant has been written by police from his own, which is not admissible in evidence.
(xii) The applicant has explained his criminal history in paragraph nos. 17 and 18 of the bail application.
(xiii) Lastly, it is submitted that investigation has been completed in this case, therefore, there is no chance of tampering the prosecution witnesses and the applicant is entitled to be released on bail.
Per contra, learned AGA as well as learned counsel for the first informant vehemently opposed the prayer of bail by contending that:-
(i) The name of the applicant has been taken by the informant as well as Aryan and Priyanshu Gupta in their statements recorded under Section 161 Cr.P.C.
(ii) Further submitted that the applicant has not disclosed all the criminal cases pending against him.
(iii) It is submitted that the benefit of tainted investigation cannot be extended to the accused.
(iv) Considering the statement of informant as a whole, the involvement of the applicant in the present case cannot be ruled out.
(v) It is also submitted that though there is no direct evidence against the applicant but the evidence of last seen as well as statement of Aryan and Priyanshu Gupta are sufficient to infer that the applicant has committed the said crime, therefore, his bail application is liable to be rejected.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Akash Tiwari @ Rahul Tiwari, 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:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) 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.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 4.6.2019 AK Pandey