Heard Sri Shiv Nath Singh, learned Senior Advocate assisted by Sri Surya Bhan Singh, learned counsel for the applicant, Sri Anoop Kumar Mishra, learned counsel for the first informant and Sri Ankit Srivastava, learned brief holder for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Gola @ Shiv Kumar seeking enlargement on bail during trial in connection with Case Crime No. 122 of 2018, under Sections 147, 148, 149, 302/34, 201, 120-B, 364 IPC, registered at P.S. Marhara, District Etah.
Learned Senior Counsel argued that the applicant is not named in the First Information Report. It is argued that subsequently the name of the applicant surfaced in a letter dated 04.06.2018 which is alleged to have been received by the first informant by post, in which, the applicant is said to be amongst five persons involved in the murder of his son Dushyant who was kidnapped on 12.05.2018 and since then went missing. It is argued that subsequently on 28.06.2018 the statement of two witnesses namely Upendra Kumar and Rakesh Babu was recorded under Section 161 Cr.P.C., copy of which is annexed as annexure 4 and in the same for the first time they have stated the applicant and nine other accused persons to have taken away the deceased. It is argued that the statement is an afterthought and is just in order to falsely implicate the applicant. It is further argued that co-accused Pinku @ Pinka, Jasveer, Dharmendra have been granted bail by different Benches of this Court vide orders dated 05.12.2018, 11.01.2019 and 07.12.2018 passed in Crl. Misc. Bail Application Nos. 46154 of 2018, 48807 of 2018 and 42913 of 2018, copies of the orders have been produced before this Court which are taken on record. Learned counsel for the applicant argued that the applicant is said to have been involved in seven other criminal cases which have been explained in para 10 of the rejoinder affidavit and also in supplementary affidavit in para 3, 4, 5 and 6 of the supplementary affidavit. It is argued that except for the said evidence there is no other evidence against the appliant. The present case is a case of circumstantial in which there is no eye witness to the same. It is argued that the circumstances are thoroughly incomplete and do not form a chain.
Per contra, learned brief holder for the State vehemently opposed the prayer for bail. It is argued while placing para 4 of the rejoinder affidavit that the applicant is a hardened criminal history who is involved in seven cases. Even in affidavit of compliance filed by the learned AGA, the criminal history of the applicant has been stated in annexure C.A.-1 which has been placed. It is argued that the applicant has criminal history of seven cases and in the present case is actively involved. It is further argued that the kidnapped boy went missing on 12.05.2018 and subsequently his dead body was recovered from a field on 05.06.2018 and the doctor found only the bones and conducted the postmortem of the same. It is argued that the applicant has been stated to have taken away the deceased. In so far as, the argument of learned counsel for the applicant of co-accused is concerned, learned AGA has argued that though Jasveer who is identically situated to the applicant has been granted bail but his case has been distinguished with that of the applicant.
I have heard learned counsel for the parties and have gone through the records, I do not fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail at this stage.
The bail application is, accordingly, rejected.
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 :- 8.1.2021 M. ARIF (Samit Gopal, J.)