Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28431 of 2021 Applicant :- Amrendra Chauhan Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Kumar Srivastava Counsel for Opposite Party :- G.A.,Ajay Srivastava
Hon'ble Samit Gopal,J.
Heard Sri Amit Kumar Srivastava, learned counsel for the applicant and Sri Ankit Srivastava, learned brief holder for the State and perused the material on record.
Sri Ajay Srivastava, learned counsel for the first informant is not present even when the matter is taken in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Amrendra Chauhan, seeking enlargement on bail during trial in connection with Case Crime No. 104 of 2020, under Sections 328, 302 I.P.C., registered at Police Station Bahariyabad, District Ghazipur.
Learned counsel for the applicant argued that although the applicant is named in the first information report along with two other co-accused persons but the entire prosecution story is false and concoction. It is argued that the case of the prosecution is that the accused persons had threatened the victim of murdering him by intoxicating him as there was 25 years old enmity between them and due to the said reason, the accused persons administered him alcohol outside the house and even in the house as a result of which, he died. It is argued that in the statement of Smt. Durga Devi, the wife of the deceased recorded under Section 161 Cr.P.C., on two various questions by the Investigating Officer, she has stated that it was co-accused Kamlesh Yadav only who came inside the house, whereas, the applicant and other co-accused, did not come to the house. It is argued that the postmortem report, does not state of any injury on the body of the deceased and the cause of death could not be ascertained due to which viscera was preserved and viscera report has been sent which is annexed at page 51, in which Aluminium Phosphide with Ethyl Alcohol was discovered. It is next argued that subsequently, after 09 months, the second statement of the Smt. Durga Devi was recorded, in which she has stated that she saw the accused persons mixing some powder after taking it out from a small paper-packet in alcohol, which was consumed by the deceased. It is argued that the same, is an improvement in the prosecution version and even, therein, there is no specification, as to who was the person who mixed the same in alcohol. It is argued that even in the statement of the first informant recorded under Section 161 Cr.P.C., he has stated that there was enmity with regard to landed property between the parties which was going on since last 25 years and as such, there was no occasion for the deceased to join the company of the accused persons for having liquor. It has also been pointed out that the applicant is not having any criminal history as stated in para 23 of the affidavit and he is in jail since 09.04.2021.
Per contra, learned A.G.A. opposed the prayer for bail but could not dispute the arguments as raised above.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the deceased died by consuming some poisonous substance which has been discovered in the viscera. There is no specification of the fact, as to who mixed the same in liquor which was consumed by the deceased and the said story has even seen the light of the day, after 09 months of the incident. Prior to this, there was no as such version of the prosecution of mixing any poisonous substance in alcohol. There was a dispute regarding property between the parties.
Looking to 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 may be enlarged on bail.
Let the applicant- Amrendra Chauhan, 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 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.
(iv) 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.
(v) 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.
(vi) 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 12.8.2021 AS Rathore (Samit Gopal,J.)