Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13553 of 2018 Applicant :- Harvir @ Pahalwan Opposite Party :- State Of U.P.
Counsel for Applicant :- Vinay Kumar Singh Chandel,Brijesh Sahai,N/A,Pankaj Kumar Singh,Zia Naz Zaidi Counsel for Opposite Party :- G.A.,Rama Shankar Mishra Hon'ble Harsh Kumar,J.
Counter affidavit filed by learned A.G.A. today in Court is taken on record.
Heard Sri Brijesh Sahai, V.K.S. Chandel, Pankaj Kumar Singh learned counsel for the applicant, Sri Rama Shankar Mishra, learned counsel for the first informant, learned A.G.A. and perused the record.
Learned counsel for the applicant contended that the applicant is not named in F.I.R. and has been falsely implicated by subsequent improvements made by first informant and witnesses during investigation in their statements u/s 161 Cr.P.C.; that as per averments made in F.I.R. lodged on 02.11.2017 by Rashid @ Billu, his brother Sabuddin was fetched by four persons in a Maruti 800 Car at 5 p.m. on 01.11.2017 which was seen by neighbour shopkeeper Alimuddin as well as Shahid, the brother of the first informant and Sabuddin of which missing report was lodged by him and his dead body was recovered from Police Station Jarcha, District Gautam Buddh Nagar and he believes that murder of his brother has been committed by four unknown persons who fetched deceased by Maruti 800 Car No. UP 16 E 8215; that on 03.11.2017 in his statement u/s 161 Cr.P.C. the first informant as well as the alleged eye-witness Alimuddin have disclosed the names of culprits for the first time; that apart from it statement of Shahid, the real brother of deceased another eye- witness was recorded after a period of two and half months on 19.01.2018, who also disclosed the names of all the four miscreants including applicant; that arrest of applicant and two others was made on 07.11.2017 with joint recovery of Maruti Car from them which has been falsely planted and of which there is no independent witness;
that nothing incriminating has been recovered from the applicant and there is no incriminating evidence against him suggesting his involvement in the crime in question; that in his statement u/s 161 Cr.P.C. alleged eye-witness Alimuddin has stated that upon recovery of dead body of deceased he also accompanied the first informant and villagers to the Police Station Jarcha, District Gautam Buddh Nagar and on return from there, he disclosed all the facts to Rashid, first informant and his family members; and still not naming the applicant in F.I.R. shows that he has been falsely implicated as a matter of afterthought; that statements of Rizwan, Zameel Quraishi and Sabu that applicant and other associates visited the shop of deceased and fetched him, are false and not admissible in evidence as they are not alleged to be the eye-witnesses of the alleged incident of fetching of deceased; that it is wrong to say that deceased intervened in the dispute between driver Samsul and accused persons; that the applicant has no criminal history; that in this case of circumstantial evidence and there is no incriminating evidence against the applicant; that applicant had no motive to cause death of deceased; that the applicant is in custody since 07.11.2017;
Learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer of bail.
Upon hearing learned counsel and perusal of record and considering the complicity of accused, severity of punishment; as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Harvir @ Pahalwan be released on bail in Case Crime No. 872 of 2017, under Sections 302, 201, 34 I.P.C., Police Station Sikandrabad, District Bulandshahar, 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 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 will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant 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 :- 30.11.2018 Ashok Gupta