Court No. - 44
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44805 of 2018 Applicant :- Gyanedra @ Sonu Opposite Party :- State Of U.P.
Counsel for Applicant :- Rahul Kumar Tripathi,Krishna Dev Mishra,Pawan Kumar Bhardwaj,Pramod Bhardwaj Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Vakalatnaama along with short counter affidavit filed by Sri Deepak Dubey on behalf of the complainant today, are taken on record.
Heard learned counsel for the applicant, complainant, AGA and perused the record.
It has been culled out from a perusal of the record that initially the FIR was registered by Jyoti Yadav, wife of deceased after four days of the alleged incident i.e., on 24.12.2017 in the wee hours of the night whereas the FIR of the same was registered on 28.12.2017 at 20.20 hours. The text of the FIR reveals that on 23.12.2017, Vishambhar Yadav (now deceased) went along with Renu Yadav to her resident Sohna, Haryana and while returning to his town by bus, he halted at Shivani Dhaba (road side food stall) near Tappal Interchange to dine. From there, he rang the informant to communicate his whereabouts and welfare. Thereafter, Vishambhar (now deceased) telephonically summoned his friend Arvind S/o Brij Bhan Singh from his village Bajauta at Tappal, whereupon Arvind along with his friend Naveen reached on the spot. Vishambhar told them that one Gaurav S/o Jagatpal had borrowed Rs. 80,000/- from him. Leaving Arvind and Naveen in the Dhaba, he went out in Gaurav's Scorpio Car No. U P 81-A N/ 0603 along with five persons namely, Satendra alias Satvir, Rakesh, Sonu alias Hoshiyar, Mona Thakur and Sonu alias Gyanendra (the applicant) to get the aforesaid amount back from Gaurav. All these happenings were again communicated on telephone by Vishambhar to the informant but thereafter around 8.00 P.M., the phone of the victim went switched off. The informant stated further therein that on failing to get any whereabouts of her husband she is suspicious that her husband Vishambhar Yadav has been abducted and murdered by the aforesaid five accused persons. Perusal of the record further reveals that on an information given by one Rahul Sharma given by the police, the dead body of the deceased was recovered on 21.01.2018 in an abandoned condition floating on the water under the Vamba culvert near to Kunwa Gaon, Akbarabad Karhal Road. The cadaver of the deceased was identified through its clothes, belt and shoes by the informant on the spot of recovery. The entire dead body of the deceased was found to be in a mutated condition and it turned into more than a skeleton of a human being.
The record next reveals that the police recorded statements under sections 161 Cr.P.C., of the witnesses namely; Jawed (the impugned Dhaba owner), his friends Arvind and Naveen, whom the victim (now deceased) had summoned on the fateful day. The post mortem examination report reveals that the deceased sustained two ante mortem injuries over his person, which included broken frontal bone (left side) measuring 3 cm x 1 cm area. Both the arms of the cadaver of the deceased were found absent.
It is submitted by the learned counsel for the applicant that submitted that the aforesaid statements of the witnesses were recorded after an inordinate delay, i.e., after two months of the alleged incident, therefore, due to elapse of time, their statements looses its sanctity. It is further submitted that even if the statements, recorded at a belated stage, for the sake of argument is taken be true then too, the aforesaid persons namely Arvind and Naveen, while giving vivid description of the incident claimed that they were merely witnesses of last seen but none of the witnesses attributed any specific role to the applicant in commission of the crime. He next submitted that no overt act has been attributed against the applicant in commission of the present crime and recovery of any incriminating article could not be made from the possession of the applicant or on his pointing out by the police, therefore, the involvement of the present applicant in the present offence can be totally ruled out. It is lastly submitted that as the two co-accused persons namely Rinku and Rajendra, who are alleged to be involved in the instant case, have already been enlarged on bail vide orders dated and 13.11.2018 passed in Criminal Misc Bail Application Nos. 40086 of 2018 and 40090 of 2018 respectively by coordinate Bench of this Court, therefore, the applicant is also liable to be granted bail on the ground of parity. He further urged that the applicant is languishing in jail since 16.03.2018 without having any criminal antecedent to his credit.
Per contra, learned counsel for the complainant as well as learned AGA vehemently opposed the prayer for bail. Sri Deepak Dubey, while fortifying his arguments submitted that the concerned police investigating team played a pivotal role in recording partisan statements of the witnesses Arvind and Navin under section 161 Cr.P.C. and that was one of the reasons that the concerned Superintendent of Police had to change the Investigating Officer on the two applications of the informant and therefore the argument raised by the leaned counsel for the applicant that the statements under section 161 Cr.P.C., were recorded after an inordinate delay two months, looses its ground and relevance. However, learned counsel for opposite parties failed to specify as to who is the real author, amongst the six accused persons, including the applicant, in commission of the offence and also could not dismantle the fact that the aforementioned co-accused persons, involved in the same incident, have been enlarged on bail by coordinate Bench of this Court.
However, this Court finds the case of the co-accused Mona Thakur and Gaurav is distinguishable from the case of the present applicant.
However, keeping in view the aforementioned circumstances of the case, fact that two ante mortem injuries sustained by the victim(deceased) and as many as six persons have been made accused in the FIR, without any direct or indirect evidence coming forward assigning the involvement of the applicant in the present crime as well as the fact that the aforesaid co-accused persons have already been enlarged on bail and submissions of the learned counsel for the contesting parties, without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Gyanendra @ Sonu, involved in Case Crime No.596 of 2017, under sections 30, 364 and 201 and 34 IPC, P.S. Tappal, District Aligarh 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 :- 30.11.2018 shailesh