Court No. - 55
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11304 of 2018 Applicant :- Dinesh Kumar @ Goli Opposite Party :- State Of U.P.
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Sri Dharmendra Singhal, Advocate filed his Vakalatnama on behalf of the complainant today, which is taken on record.
Heard Sri Manish Tiwary, learned counsel for the applicant, complainant, learned AGA and perused the record.
The instant application has been filed by applicant Dinesh Kumar @ Goli seeking bail in Case Crime No. 191 of 2017, under section 302 IPC, P.S. Surir, District Mathura. He is suffering incarceration in jail since 08.08.2017.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. It has been further submitted that though the applicant is named in the FIR along with some other unknown persons. As per the informant, his brother Rajkumar alias Bhura (deceased) went out after attending the phone call of the applicant which was made on his mobile on 04.08.2017 at about 8.00 P.M. Whereabouts of the victim, were not known through out the night and on the very next day i.e., 05.08.2017 at about 9.50 A.M., the informant lodged a missing report of his brother and thereafter the carcass of his brother was found in an agricultural field of one Rohan of his village. In the very missing report, the informant has expressed suspicion on the applicant and his other companions in the elimination of his brother. After registration of the FIR, the post mortem of the carcass of the deceased was conducted, wherein it was found that the deceased sustained as many as seven injuries on his person by three different deadly weapons. All the injuries were opined to be caused by firearm and incised wounds over his person. The informant reiterated the prosecution version in his statement recorded under section 161 Cr.P.C. Thereafter in his examination-in-chief (majeed bayan) on 15.08.2017 wherein name of some more accomplices of the applicant were mentioned, who were alleged to have jointly assaulted the victim. It is further contended that during the entire investigation by the police no statement or material collected against the applicant in the commission of the crime. It has been lastly submitted that the applicant is suffering incarceration in jail without any criminal antecedents to his credit.
Learned AGA as well as learned counsel for the complainant opposed the prayer for bail submitted that since the victim was having illicit relationship with the sister of the present applicant, therefore, this could be a good reason/motive of killing him. Learned counsel for the complainant has drawn attention of the Court towards injury no. 7, where the private part of the victim was brutally damaged and through this Sri Dharmendra Singhal has tried to develop the aforesaid theory, which is not at all confidence generating. There is no other material on record to even indicate that the deceased was having illicit relationship with the sister of the applicant except a bald confession of the accused applicant before the police.
The entire case hinges upon the broken links and the circumstantial evidence and there is no material evidence involving the present applicant in the commission of the crime.
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 case for bail.
Let the applicant Dinesh Kumar @ Goli, involved in Case Crime No. 191 of 2017, under section 302 IPC, P.S. Surir, District Mathura be released on bail 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 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 29.3.2018 shailesh