Heard Sri Sunil Kumar Srivastava, learned counsel for the applicant, Bratendra Singh, learned counsel for the first informant and Sri Ankit Srivastava, 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-Kanhaiya @ Lokendra, seeking enlargement on bail during trial in connection with Case Crime No.290 of 2020, under Section 302, 201, 120-B I.P.C., registered at Police Station Bewar, District Mainpuri.
Learned counsel for the applicant states that he does not intend to file rejoinder affidavit to the counter affidavit filed by the State.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present FIR has been registered by the first informant Shyam Pratap Singh, the brother of the deceased on 26.07.2020 against unknown persons stating therein that on 25.07.2020 at about 2 p.m., his brother Shivam Singh aged about 22 years had gone missing for which a missing report was got registered by him. Thereafter he searched his brother to various places after which the villagers told him that the dead-body of his brother is hanging from a tree in the field of Ajab Singh. Subsequently on 5.10.2020 Pradeep Kumar and Raghu Nandan Singh were interrogated by the police wherein the name of the applicant has surfaced for the first time wherein it was mentioned that Priyanka who was having some relationship with the deceased had in conspiracy with some persons got the motorcycle of the deceased snatched by Ravindra Singh, Vivek and present applicant. Subsequently on 13.10.2020 Vivek and Rajpal Singh were interrogated who stated that they saw three persons coming from the field of Ajab Singh on 24.07.2020 after which they inquired about them and then they came to know that three persons are Vivek, Ravindra Singh and present applicant Kanhaiya @ Lokendra. Later on, on 20.10.2020 Shailendra @ Gopal and Hari Mohan were interrogated who stated that Priyanka was talking to three persons and the said three persons were saying that now the police has come to know about their implication and are behind them after which he inquired about the said three persons who were Vivek, Ravindra and present applicant Kanhaiya @ Lokendra. Thereafter the second statement of the first informant Shyam Pratap Singh was recorded on 24.10.2020 who stated that he along with his younger brother Suraj Singh was present in his field about 23 days back wherein Vivek, Ravindra and Kanhaiya @ Lokendra, the present applicant came to them and gave their extra-judicial confession and stated that they have murdered their brother Shivam Singh by strangulating him with rope. It is argued that the entire evidence is a concocted and false evidence and coming after about three months of the incident and the second statement of the first informant is also false which was recorded on 24.10.2020 which is after about three months in which he states that around 23 days back the accused persons had given their extra-judicial confession to him. The police just in order to show good work has implicated the applicant in the present case. There is no recovery either from the possession of the applicant or at his pointing out. It has also been pointed out that the applicant is not having any criminal history as stated in para 21 of the affidavit and is in jail since 27.10.2020.
Per contra learned counsel for the first informant and learned A.G.A. have opposed the prayer for bail and argued that the applicant in conspiracy with two other accused persons namely Ravindra Singh and Vivek committed the murder of the deceased along with Smt. Priyanka who was the main person who had conspired. The applicant has given his extra-judicial confession to the first informant and his younger brother Suraj Singh, as such he is involved in the present case and the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant is not named in the FIR. His name has surfaced for the first time in the statements of the alleged witnesses after about 3 months. The story regarding giving of an extra-judicial confession has come after about three months that too which is said to have been disclosed about 23 days before.
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-Kanhaiya @ Lokendra, 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 :- 24.8.2021 Gaurav