Court No. - 74
Case :- CRIMINAL APPEAL No. - 438 of 2020 Appellant :- Gourav Respondent :- State of U.P. and Another Counsel for Appellant :- Manoj Vashisth,Sandeep Kumar Singh Counsel for Respondent :- G.A.,Mohd. Akbar Shah Alam Khan
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellant, learned counsel for the informant, learned AGA for the State and perused the record.
This appeal has been filed by appellant Gourav against the order dated 02.01.2020 of learned Special Judge, SC/ST Act, Muzaffarnagar, passed in Bail Application No. 4701 of 2019 ( Gaurav vs. State of U.P.), arising out of Case Crime No. 455 of 2019, under section 302, 201 I.P.C. and section 3(2)(5) of SC/ST (Prevention of Atrocities) Act 1989, P.S.- Bhopa, District -Muzaffarnagar, by which bail plea of appellant has been rejected. Aggrieved by the same appellant has filed this present appeal.
The F.I.R. has been lodged against unknown persons and during investigation the name of the appellant came in light.
Submission of learned counsel for the appellant is that appellant was not named in the F.I.R. and the police informer told the police about co-accused and the co-accused was arrested who made confessional statement and he took the name of the appellant, on that basis appellant was also arrested and it is said that he also made confessional statement. Further submission is that co-accused who made confessional statement and on whose pointing incriminatory article was recovered has already been given bail by order passed in Criminal Appeal No. 7521 of 2019 preferred by co-accused Suraj Dhaka and the order has been placed before the Court which is taken on record. Therefore, it has been submitted that the learned Special Judge who passed the bail rejection order of the appellant has totally ignored the fact that the case is totally based on the circumstantial evidence and there is no eyewitness who supported the prosecution case, this aspect was totally ignored by the learned Special Judge and being influenced by the fact that the deceased belongs to Scheduled Caste community and it was a case of murder, the bail application of the applicant-appellant was rejected, there is apparent illegality in the impugned order and the same is liable to be set aside. Appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned counsel for the informant and learned AGA have vehemently opposed the prayed but this fact has not been disputed that the case is totally based on circumstantial evidence and the co-accused from whom the recovery of the alleged weapon by which the death was caused was recovered has already been granted bail.
Having heard the submission of learned counsel of both sides, considering the facts and circumstances of the case, I find that there is apparent illegality in the impugned order and the order is not sustainable in the eye of law and is liable to be set aside.
In the result, appeal is allowed. Order dated 02.01.2020 passed by learned Special Judge, SC/ST Act, Muzaffarnagar is set aside.
Let appellant-applicant Gourav be released on bail in Bail Application No. 4701 of 2019 ( Gaurav vs. State of U.P.), arising out of Case Crime No. 455 of 2019, under section 302, 201 I.P.C. and section 3(2)(5) of SC/ST (Prevention of Atrocities) Act 1989, P.S.- Bhopa, District -Muzaffarnagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-appellant will not indulge in any unlawful activities.
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.
Order Date :- 30.7.2021 /Bhanu