1. Heard Sunil Kumar, learned counsel for the applicant, Akhilesh Kumar Mishra, learned A.G.A. and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.10 of 2016, under Sections 302 and 120B of I.P.C., Police Station-Sikandarabad, District-Bulandshahr.
3. Learned counsel for the applicant submitted that it is a second bail application on behalf of accused/applicant, who is languishing in jail since 09.1.2016. Both co-accused are admitted to bail by this Court. First bail application was rejected on 31.1.2017, without assigning any reason. Applicant has declared that he has no criminal antecedents. Counsel further submitted that occurrence took place on 06.1.2016 at about 5 P.M. and F.I.R. was lodged by mother of the deceased, admittedly not an eye witness, had expressed suspicion on co-accused Ajab Singh and Singh Raj, who were exonerated after investigation. The only eyewitness account is of one Raj Singh whose statement under Section 161 Cr.P.C. was recorded after two days where in applicant was attributed the role of firing, now been dropped by prosecution and learned Trial Court has passed order to this effect on 20.9.2017 therefore, there is no eyewitness to the alleged occurrence. He also pointed out that later on prosecution brought (Pappu), who not even examined during investigation as an alleged eye witness, but his testimony was stayed by an order passed by this Court. Entire case of the prosecution rests on hearsay evidences. Alleged recovery from the applicant of country made pistol and live cartridges were planted and conducted in absence of any public witness. As per the charge-sheet, co-accused Ajab Singh (on bail) hatched conspiracy along with applicant and Lalit (on bail) who fired shot on the deceased. No motive was attributed to applicant. On the basis of testimony on record, chances of conviction are very less, applicant is entitled for bail.
4. Akhilesh Kumar Mishra, learned A.G.A. for State opposed the bail application. He argued that deceased died due to fire arm injuries shot near ear, chest and axilla. There is evidence on record in regard to conspiracy and active participation of applicant who shot deceased by fire arm coupled with the fact that weapon used in crime is recovered from the applicant. However, counsel has not disputed that alleged eyewitness Raj Singh is dropped by the prosecution as a witness and testimony of newly introduced alleged eye witness is stayed by the Court and that co-accused are on bail.
5. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
6. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that only alleged eyewitness Raj Singh is dropped by prosecution witness. Further, testimony of newly introduced alleged eyewitness Pappu is stayed by this Court and testimony of other material witnesses is concluded, applicant has declared about his no criminal history, applicant is in jail since 09.1.2016, and two co-accused are on bail, a case of bail is made out.
7. Let the applicant Devendra @ Joni, involved in the aforesaid Case Crime Number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(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.
8. 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.
9. The bail application is allowed.
10. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
11. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
12. 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.
13. The observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :-18.2.2021 SB