Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28800 of 2021 Applicant :- Jagannath Opposite Party :- State of U.P.
Counsel for Applicant :- Shailendra Kumar Tripathi Counsel for Opposite Party :- G.A.,Satendra Singh
Hon'ble Samit Gopal,J.
Heard Sri Shailendra Kumar Tripathi, learned counsel for the applicant, Sri Satendra Singh, learned counsel for the first informant and Sri Akhilesh Kumar Tripathi, learned counsel 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 Jagannath, seeking enlargement on bail during trial in connection with Case Crime No. 73 of 2021, under Sections 302, 201, 120-B I.P.C., registered at Police Station Jahanganj, District Farrukhabad.
The prosecution case as per the First Information Report lodged on 05.04.2021 by Ashu Dubey naming the applicant, Sudhakar, Vivek and Diwakar as the accused is that his brother Shailu Dubey was released from jail on 02.02.2021 and he came to the village. The daughter of Sudhakar had eloped with his brother in which he had gone to jail due to which the accused persons were having enmity with him. On 01.04.2021 his brother went to get his motorcycle repaired and due to the old enmity, the accused persons murdered him and have thrown his dead body in Kali river which was recovered.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the First Information Report has been lodged after five days of the incident without any plausible explanation therein. It is further argued that the first informant in his statement under Section 161 Cr.P.C. has reiterated the version of the First Information Report but has further supplemented by stating that Dharma @ Dharmveer was also involved in the murder as he was in jail when his brother was in jail. Dharma was his friend and he did not attend the cremation of his brother and has run away from the village.
It is further argued that there is no eye witness to the murder. The present case is a case of circumstantial and the links in the chain are conspicuously missing. There is no recovery of any incriminating material either from the possession or pointing out of the applicant. It is further argued that the applicant is an old person aged about 65 years. The applicant happens to be the father of Sudhakar and grandfather of the victim girl who is alleged to have eloped with the deceased. He further argued that the applicant has no criminal history as stated in para 25 of the affidavit and is in jail since 13.04.2021.
Per contra, learned counsel for the first informant vehemently opposed the prayer for bail. It is argued that the applicant had lodged a First Information Report on 05.04.2019 as Case Crime No. 238 of 2019 under Sections 363, 366, 504, 506 IPC naming the deceased Shailu, Ashu, Awadhesh, Ankur and Deepak in which the victim girl and the deceased Shailu approached this Court for quashing of the same in which vide order dated 17.05.2019, their arrest was stayed and directions were issued for recording of the statement of the victim and her medical examination. The writ petition was numbered as Crl. Misc. Writ Petition No. 13312 of 2019 (Prachi and another Vs. State of U.P. and 3 others). It is argued that the victim was then living with her parents and subsequently she again was enticed away after which another First Information Report was lodged on 04.09.2019 as Case Crime No. 627 of 2019 under Sections 363, 366, 506, 120-B IPC by Jagannath (the present applicant) against Shailu, Ashu, Ankur, Awadhesh and Deepak with regards to the enticing away of the said victim girl.
The said First Information Report was challenged by the victim girl and three others before this Court in Writ Petition No. 21992 of 2019 (Smt. Prachi and 3 others Vs. State of U.P. and 3 others) which was dismissed as infructuous as the accused persons were arrested.
In Case Crime No. 627 of 2019, the statement of the victim girl was recorded under Section 161 Cr.P.C. who had given the statement in favour of the accused. She was handed over in the custody of the deceased Shailu after which second First Information Report was lodged and then was sent to the Nari Niketan, later on, she appeared in the trial of the previous case which was S.T. No. 119 of 2019 (State of U.P. Vs. Shailu and others) as PW-1 but she did not support the prosecution case and was declared hostile.
She further stated that she went with the applicant out of her own sweet will and she wants to marry, she was not enticed away. It is argued that the same was motive for the accused persons to commit the murder of Shailu as the girl of their family had eloped twice with him and even the deceased had been in jail. It is argued that as such the motive in the present case to commit the said offence and the applicant is involved.
Learned counsel for the State adopted the arguments of learned counsel for the first informant.
After having heard learned counsels for the parties and perusing the records, it is evident that there is no eye witness to the murder. The case as is being taken up against the accused persons, it is only on the basis of motive. There is no recovery of any incriminating material either from the possession or pointing out of the applicant. There is no credible evidence to implicate the applicant in the present case.
Looking to 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 Jagannath, 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.
Order Date :- 27.10.2021 M. ARIF (Samit Gopal, J.)