Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24782 of 2021 Applicant :- Kailash Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Daga Counsel for Opposite Party :- G.A.,Ajay Sengar
Hon'ble Samit Gopal,J.
Heard Sri Amit Daga, learned counsel for the applicant, Sri B.B. Upadhyay, learned AGA for the State and perused the material on record.
Sri Ajay Sengar, learned counsel for the first informant is not present even when the matter has been taken up in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Kailash, seeking enlargement on bail during trial in connection with Case Crime No. 34 of 2021, under Sections 394, 302, 201, 411, 34 I.P.C. registered at P.S. Kotwali Orai, District Jalaun.
Learned counsel for the applicant argues that the present case is a night incident which is alleged to have taken place on 16.01.2021 for which the first information report has been registered on 17.1.2021 at 2.51 p.m. by Krishna Murari Mishra regarding the death of Dharam Singh who was working as his 'chowkidar' at the place where his boring machine and tractor are kept. It is argued that the first information report has been lodged against unknown persons. It is argued that there is no eyewitness to the murder. The present case is a case of circumstantial evidence. Learned counsel for the applicant has placed before the Court the postmortem report of the deceased and argued that the Doctor although has noted as many as six injuries in the same and has opined that the cause of death is shock and haemorrhage due to ante mortem injury. It is argued that it is evident that the first informant in his statement recorded under Section 161 Cr.P.C. has also named the applicant and has reiterated the same version as that of the first information report. Subsequently, in supplementary statement recorded under Section 161 Cr.P.C. on 25.1.2021 of the first informant, the copy of which is annexed as annexure-9 to the affidavit, he has stated that the accused persons have looted the mobile phone of the deceased and has given the number of the said phone. It is argued that subsequently, the police from the said number located the IEMI number of the handset of the mobile and recovered the same from the possession of co-
accused Pradep @ Chhola. The reference of the same is in CD dated 26.1.2021, a copy of which is annexed as annexure10. It is argued that at the time of arrest of Pradeep @ Chhola, the applicant was also arrested along with him and from the possession of the applicant, a country made pistol of 315 bore was recovered for which the recovery memo is annexure-11. It is argued that the said country made pistol is in no manner incriminating as there is no gun shot injury found on the body of the deceased. It is further argued that later on at a very belated stage, on 28.2.2021 one Mool Charan was interrogated who stated that he on the night of the occurrence in the light of torch saw one person driving the tractor and there persons sitting on it and amongst the said four persons, he identified two persons who were taken for recovery of the knife. It is argued that the said two persons who were taken for recovery of knife are Daulat Singh and Pradeep @ Chhola but the applicant is not even identified by the said witness. It is argued that although he states of four persons but he does not state that he has seen the applicant and identified him. It is further argued that the police has submitted charge-sheet in the present matter and the investigation has concluded. The copy of the charge-sheet is annexure-17 to the affidavit. It is argued that the links in the chain of circumstances are conspicuously missing and the implication of the applicant is false and without any evidence. It is also submitted that the applicant has no criminal history as stated in paragraph 36 of the affidavit and is in jail since 28.1.2021.
Per contra, learned AGA opposed the prayer for bail but did not contradict and dispute the arguments as raised by learned counsel for the applicant.
After having heard learned counsel for the parties and perusing the record, it is apparent that the present case is a case of circumstantial evidence. The applicant is not named in the first information report. He was arrested along with co-accused Pradeep @ Chhola from whom the mobile phone along with SIM of the deceased was recovered and from the possession of the applicant, a country made pistol was shown to have been recovered but the deceased has not received any gun shot injury. There is no other evidence against the applicant.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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- Kailash, 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.
(Samit Gopal,J.) Order Date :- 29.7.2021 nd