Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25107 of 2021 Applicant :- Kapil @ Manish Saini Opposite Party :- State of U.P.
Counsel for Applicant :- Roopesh Srivastava Counsel for Opposite Party :- Dharmendra Singh Chauhan
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard learned counsel for the applicant and the learned A.G.A. Perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.1139 of 2020, under Section 302 I.P.C., Police Station-Quarasi, District- Aligarh after rejection of his Bail Application vide order dated 9.3.2021, passed by learned Sessions Judge, Aligarh.
3. According to the averment of the F.I.R. son of the informant got married with Saroj (co-accused) wife of his neighbor Veerpal about 5 years ago, who had already 4 children in a run away marriage. They have a son of one and a half year out of their wedlock. It was further alleged that applicant Kapil, a neighbor had illicit relations with Saroj which was objected by his son. On 4.12.2020, in the night applicant informed the informant that Saroj had send him to inform that Satish, son of the informant was not well, when informant and his son reached at the residence of Satish, they found him dead.
4. Learned counsel for the applicant submitted that F.I.R. was lodged only against the co-accused Saroj, wife of deceased. Applicant was not named in the F.I.R. His name was disclosed in the statement of co-accused Saroj alleging that deceased has came to know about her illicit relationship with applicant and they planned to commit murder of Satish and both strangulated the deceased. Name of the applicant was implicated only due to business rivalry. Applicant is about half of the age of co- accsued Saroj, therefore, questions of any relationship did not arise. Only evidence against the applicant is confessional statement of co-accused, which is a very weak piece of evidence. The applicant has no other reported criminal antecedent and he is languishing in jail since 11.12.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Learned A.G.A. has vehemently opposed the bail application and submitted that immediate cause of death of deceased was Asphyxia as a result of ante mortem strangulation. First informant has stated that there were frequent fights between the deceased and his wife Saroj because she had illicit relationship with the applicant. Deceased has died at his residence, where co-accused also stayed, however, there was no explanation of cause of death. Independent witnesses had seen applicant going upstairs at the residence of deceased at the time of occurrence and also coming out after sometime in hurry. There is an evidence that call was made from the phone of the deceased at relevant time to a phone number which was in the name of father of the applicant. There are sufficient evidence against the applicant, which forms a chain to connect him with the offence.
6 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
7. In the present case, prima-facie sufficient evidence exist which indicates that the applicant was in illicit relationship with co-accused Saroj wife of deceased, which was objected by the deceased. Applicant was seen going in and coming out from the house of deceased around the time of occurrence. Details of phone call is also a link to connect the applicant with the crime. Presence of prima-facie motive is also there to connect the applicant with the murder of husband of co-accused, who died due to strangulation.
8. Considering that there are severe allegations on the applicant, therefore, no case of bail is made out.
9. Accordingly, this bail application is rejected.
Order Date:-27.7.2021 SB Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.07.30 16:02:48 IST Reason: Document Owner Location: High Court of Judicature at Allahabad