Court No. - 51
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23249 of 2021 Applicant :- Gajendra Opposite Party :- State of U.P.
Counsel for Applicant :- Rajesh Kumar,Ram Behari Saxena Counsel for Opposite Party :- G.A.,Upendra Upadhyay
Hon'ble Om Prakash-VII,J.
Present bail application has been filed by the applicant with the prayer to enlarge him on bail in Case Crime No. 219 of 2020, under Sections 302/34 IPC, P.S. Nidhauli Kalan, District Etah.
Heard S/Shri Ram Behari Saxena and Rajesh Kumar, learned counsel for the applicant, Shri Upendra Upadhyay, learned counsel for informant as well as the learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further submitted that incident is said to have taken place on 31.07.2020 at 06:30 PM. Deceased died during treatment at Agra on 01.08.2020 at 08:25 AM. Post-mortem was conducted on 01.08.2020 at 01:30 PM itself. Referring to the post-mortem report, it is further submitted that rigour mortise was not found present on the body of the deceased. This fact itself shows that incident took place in other manner at different time. None has seen the present incident. Informant is also not eye account witness. Medical evidence does not support the oral version. It was a case of sudden quarrel. No specific role has been assigned to either of the accused. What weapon was used by each and every accused in committing the present offence has also not been made clear. Presence of the witnesses at the place of occurrence is also doubtful, as Investigating Officer has not shown in the site plan the place where witnesses were present at the time of occurrence. Dying declaration said to have been made by the deceased to his wife cannot be treated as dying declaration, as it is not in proper form. It is further submitted that there was enmity between the deceased and co-accused Vakil. It is further submitted that recovery shown against the applicant is false, planted and is not supported with independent evidence. No F.S.L report was obtained by the Investigating Officer concerned to connect the weapon said to have been recovered in the matter. Blood was also not found on the said weapon. Criminal cases shown as criminal history were planted after arrest in this matter. No prima facie case is made out against the applicant. He is languishing in jail since 03.08.2020 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned counsel for informant as well as the learned AGA opposed the prayer for bail and submitted that deceased died during treatment on the next day of the incident. Post-mortem was conducted on the death of the deceased. Thus, rigour mortise was found present all over the body. Number of injuries were caused by the accused person to the deceased. This fact is supported with the injuries shown in the post- mortem report. Referring to the aforesaid facts, it is further submitted that oral evidence is supported with medical evidence. Referring to the contents of the F.I.R., it is further submitted that deceased has made dying declaration to his wife which also supports the statement of the eye account witnesses. It is also argued that if investigating Officer has not shown the place of standing of the witnesses in the site plan at the time of incident, same will not be sufficient to hold that eye account witnesses were not present on the spot. A prima facie case is made out against the applicant.
Having regard to the facts and circumstances of the case and considering the submissions made by the learned counsel for the parties and going through the entire evidence including the dying declaration said to have been made by the deceased to his wife disclosing the manner of incident as well as the medical evidence, complicity of accused, scrutinizing the facts mentioned in the F.I.R., statement of witnesses and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has not made out a case for bail. The bail application is liable to be rejected and the same is accordingly rejected.
Order Date :- 22.9.2021 Sanjeet Digitally signed by OM PRAKASH Date: 2021.09.23 14:51:42 IST Reason: Document Owner Location: High Court of Judicature at Allahabad