Learned Additional Government Advocate has informed that he has procured complete instructions in the matter and charge sheet in this case has also been filed.
Heard the learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the applicant- Bhandari @ Jiyauddin for grant of bail, in Case Crime No. 174 of 2020, under Section 379 I.P.C. & Section 3/5/8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955, P.S.Rampur Mathura, District Sitapur, during trial.
Learned counsel for applicant while pressing the bail application submits that the accused-applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
It is further submitted that the applicant was not named in the FIR and it was in the statement of one Ram Phal recorded after four days of the incident that complicity of the applicant has been surfaced in the crime only to the tune that the witnesses Ram Phal has claimed to have seen the applicant with the cow of the informant in the dying hours of night. Apart from the evidence of witness Ram Phal, there are two other witnesses, namely, Badri Prasad and Baleshar, who have claimed that the applicant has confessed his guilt before them and also that the son of the applicant has also stated the complicity of the applicant in the crime.
Highlighting the above factual matrix it has been vehemently submitted by learned counsel for applicant that the witness Ram Phal is a chance witness as it was not natural for him to remain awake in the dying hours of the night and the evidence of two witnesses, namely, Badri Prasad and Baleshar who have claimed that the applicant has confessed before them could also not be believed as there was no occasion for the applicant to have confessed the guilt as they were never in a position to help the applicant and, therefore, both these witnesses are planted.
It is further submitted that the alleged offences against the applicant are triable by the Magistrate and there is no direct evidence of the crime. The time gap between the last seen and the time of death of the stolen cow is so vast that the entry of any other person could not be ruled out. Charge sheet in the matter has already been submitted and on the basis of the instant case the provisions of Gangsters Act has also been invoked. The applicant has no criminal history and he is in jail in this matter since 22.11.2020 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.
Learned A.G.A. however, opposes the prayer for bail of the applicant on the ground that he has committed heinous offence, but could not controvert the other factual submissions made by the learned counsel for the applicant.
Having heard learned counsel for parties and having perused the record it is evident that the instant case is based on circumstantial evidence as no-one has claimed to have seen the applicant slaughtering the prohibited animal. The prosecution witness Ram Phal is a witness of last seen, however he claimed to have seen the applicant in the night with the cow when he came out of his house to attend the call of nature at the dying hours of night. The other two witnesses are of extra judicial confession about whom it has been vehemently submitted that they were not in a position to help the applicant and the witness Ram Phal is a chance witness. The alleged offences against the applicant are triable by the Magistrate. He is in jail in this matter since 22.11.2020. Gangsters Act has also been slapped against the applicant, however it is submitted that bail in that case could only be obtained only after obtaining bail in this case.
Having regard to the over all facts and circumstances of the case and keeping in view the submissions made by learned counsel for the applicant I find substance in the submissions of learned counsel for applicant only for the purpose of releasing the applicant on bail. The bail application is, thus, allowed.
Let the applicant - Bhandari @ Jiyauddin involved in the aforesaid case be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Observations made herein above are only for disposal of this bail application and shall have no effect on the fate of the trial.
Order Date :- 15.4.2021 Irfan