Court No. - 40
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47632 of 2018 Applicant :- Ishwar Opposite Party :- State Of U.P.
Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.
It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. Initially FIR was lodged against the applicant also but after investigation no charge sheet was submitted against him. Referring to the evidence collected by the Investigating Officer during investigation it was further argued that charge sheet in the matter was submitted only against co-accused Kaptan @ Vikrant, who is facing trial. Two prosecution witnesses were examined in this case. An application under Section 319 Cr.P.C. was moved, which was rejected on the ground that eye account witnesses have not been examined. Later on PW-3 Yogendra @ Kalu and PW-4 and Dhyan Singh were examined and thereafter prosecution moved application under Section 319 Cr.P.C. which was allowed by the Trial court vide order dated 20.06.2018 and applicant was summoned to face the trial. It is next contended that none of the witnesses examined in the matter on behalf of prosecution are eye account witnesses nor they have seen the accused along with deceased at any point of time. At this juncture, learned counsel for the applicant referred to the inquest report and argued that had the witnesses seen the incident, they would have not left the dead body in the field. The conduct of the witnesses are unnatural. Referring to the statement of Meenu and Jyoti it was further argued that they are also not eye account witnesses as the time of the offence stated by them differs with the time mentioned in the F.I.R. Criminal history shown against the applicant has been duly explained through the affidavit annexed with the bail application and supplementary affidavit. Applicant is languishing in jail since 14.9.2018 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
On the other hand, learned AGA has vehemently opposed the prayer for bail and argued that applicant was named in the F.I.R. He was also involved in this case. There is sufficient evidence against him, as stated by prosecution witnesses examined before the Court.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
Let the applicant Ishwar involved in Case Crime No.209 of 2014 under Section 302 I.P.C., P.S. Simbhawali, District Hapur be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, complainant is free to move an application for cancellation of bail before this Court.
Order Date :- 19.12.2018
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