Heard Mr. Anil Kumar Srivastava, learned Senior Advocate assisted by Mr. Piyush Kumar Shukla, learned counsel for the applicant, learned Additional Government Advocate representing the State and perused the record of the case.
By means of this application, the applicant Hemant Singh Parihar @ Himmu, who is involved in Case Crime No. 219 of 2020 (Special Case No. 489 of 2020), under Sections 302, 201 and 404 IPC, police station Mauranipur, district Jhansi, is seeking enlargement on bail during the trial.
It is submitted by learned counsel for the applicant that on 28.5.2020 Shiv Narayan Tiwari, brother of the deceased given an information to the police station Mauranipur, district Jhansi with regard to missing of his brother Ronu Tiwari @ Chandrabhushan (deceased) alleging inter alia that on 27.5.2020 at about 7-8 p.m. his brother left his house on his motorcycle bearing No. UP 93 BG 1910 after receiving a call on his mobile phone, but did not return to home and in the night, the motorcycle of his brother was found standing by the side of river about 2 Kms away from his village Bijwara. On the next day father of deceased lodged the first information report on 29.5.2020 against the present applicant Hemant Singh Parihar @ Himmu and his unknown friends alleging inter alia that dead body of his son was found in a pool of blood on 29.5.2020 in the agricultural field of Santosh Kumar and he suspected that his son was murdered by the applicant along with his friends. The statement of the informant was recorded, in which he has disclosed that on making inquiry in village, he came to know that his son has been murdered by the applicant-Hemant Singh Parihar @ Himmu and his friends. Thereafter, on 31.5.2020 police apprehended the applicant and two other persons, namely, Mahendra Barar and Pankaj Barar and shown a recovery of one voter identity card and one broken mobile phone of the deceased from the possession of the applicant and one ring from the possession of co-accused Mahendra Barar and Pankaj Barar each, alleging inter alia that the said rings belongs to the deceased, and it is the case of the prosecution that the aforesaid apprehend persons have confessed their guilt, and thereafter, on their pointing out one blood stained Banka has also been recovered on 31.5.2020. The main substratum of argument of learned counsel for the applicant is that admittedly there is no eye-witness of the alleged incident. It is again submitted that there is no direct evidence against the applicant except the confessional statements of the applicant and other co-accused persons, namely Mahendra Barar and Pankaj Barar, which are not admissible in evidence. The aforesaid recovery has been planted by the police in order to implicate the applicant. It is further submitted that one co-accused, Vikas Tiwari have also been implicated in the case on the basis of alleged confessional statement of the applicant, co-accused Mahendra Barar and Pankaj Barar, who has been granted bail on 6.8.2020 by the Co-Ordinate Bench of this Court passed in Criminal Misc. Bail Application No. 19916 of 2020, copy whereof has been appended as annexue No. 9 to the application. Lastly, it is submitted that the five golden principles for proving the case regarding the link evidence as laid down by Hon'ble the Apex Court, is missing in the present case. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. It is also submitted that the applicant has no criminal antecedent to his credit and is facing detention since 31.5.2020. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.
Per contra learned A.G.A. has opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage therefore, the applicant does not deserve any indulgence. In case the applicant is released on bail he will misuse the liberty of bail.
Having considered the submissions of the parties, without expressing any opinion on the merits, let the applicant Hemant Singh Parihar @ Himmu involved in the aforesaid case, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 of the Indian Penal Code.
(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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 applicant shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
(vi) The computer generated copy of this order shall be self attested by the counsel of the party concerned.
(vii) 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.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 12.2.2021 Sumaira