Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36518 of 2019 Applicant :- Guddu @ Bijendra Singh Shakya Opposite Party :- State of U.P.
Counsel for Applicant :- Atharva Dixit,Raghuvansh Misra,Ram Autar Verma Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Atharva Dixit, learned counsel for the applicant, Sri Ashwani Prakash Tripathi, learned AGA 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 Guddu@Bijendra Singh Shakya, seeking enlargement on bail during trial in connection with Case Crime No. 590 of 2018, under Sections 302, 364, 201, 34 I.P.C., registered at P.S.- Bewar, District Mainpuri.
The prosecution case is that the husband of the first informant namely Lalaram Saxena went missing on 12.12.2018 for which a missing report was got registered by his wife Smt. Maya Devi on 13.12.2018 at 15.27 hours against unknown persons. Subsequently on 15.12.2018 she lodged an F.I.R. at 19.59 hours under Section 364 I.P.C. against Chandra Shekhar@Babloo, Rishi Yadav and two unknown persons wherein she mentioned that her husband has disappeared since 12.12.2018 and she has a belief that the accused persons named therein have kidnapped her husband.
It is argued by learned counsel for the applicant that the present case is a case circumstantial in nature. The applicant is not named either in the missing report or in the F.I.R. It is further argued that subsequently the statement of first informant Smt. Maya Devi was recorded on 16.12.2018 under Section 161 Cr.P.C. wherein for the first time she names the applicant but does not claim herself to be an eye witness and the name of the applicant has appeared on the basis of suspicion. It is then argued that the other evidence relied by the prosecution is alleged to be the recovery of dead body which is said to be on joint pointing out of the co-accused Chandra Shekhar@Babloo and the present applicant on 18.12.2018. It is argued that the said recovery under Section 27 of Indian Evidence Act is not at all sufficient to implicate the applicant and does not form a complete chain in the circumstances in a matter of circumstantial evidence. It is argued that the deceased died as a result of throttling and only a ligature mark was found on his dead body at the time of post mortem examination. It is thus argued that except for the said two evidence, there is no other evidence against the applicant. While criticizing the statement of the first informant it is argued that even she is not an eye witness to the incident but has named the applicant on account of suspicion only. It is thus argued that the evidence of recovery on the joint pointing out is also not admissible and mere evidence of recovery of a dead body is insufficient to implicate the applicant. Learned counsel for the applicant argued the applicant has no other criminal antecedents as stated in para-34 of the affidavit and is in jail since 18.12.2018.
Per contra, learned AGA has opposed the prayer for bail and has argued that on the joint pointing out of the applicant and the co- accused Chandra Shekhar@Babloo the dead body of the deceased was recovered, which was sufficient to implicate the applicant.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Guddu@Bijendra Singh Shakya, be released on bail in the aforesaid case crime number 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 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.
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.
The bail application is allowed.
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.
(Samit Gopal,J.) Order Date :- 5.1.2021 Naresh