Heard Sri Rajesh Kumar Dubey and Sri Vidya Dhar Dubey, learned counsel for the applicant, Sri Pankaj Mishra, learned brief holder for the State and perused the material on record.
Sri Sunil Kumar Yadav, 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 Mothai Bind @ Mata Prasad seeking enlargement on bail during trial in connection with Case Crime No. 188 of 2019, under Sections 302, 201, 120-B IPC, registered at P.S. Handiya, District Prayagraj.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that initially the First Information Report was registered by one Panjabi Yadav, the brother of the deceased, in which, though the applicant is named therein but only the allegation against him is that the deceased Shyam Bihari Yadav used to visit his place quite often. It is argued that except for the said allegation there is no other allegation against the applicant. It is argued that in the First Information Report itself, it is mentioned that the deceased on 12.03.2019 at 6:00 AM went to his place of his employment, returned back at about 2:00 pm after which at about 4:00 PM he went from the house, on which, his nephew Durgesh Yadav called him and asked him as to where he is, to which, he said that he will come after about two hours, and later on, about 6:00 PM, an effort was done to connect again but his phone was switched off after which on 13.03.2019 at about 10:00 AM, the first informant came to know that the dead body of his brother is lying on a kachhi road near the wheat field wherein he was went there and identified of his brother. It is argued that subsequently, the statement of the first informant was recorded under Section 161 Cr.P.C., in which, he reiterated the version of the First Information Report and further stated that on 12.03.2019, the deceased had gone to the place of the applicant, and later on, he states that he has a belief that his brother has been murdered by the applicant. It is further argued that Chote Lal Yadav was also interrogated and he also stated the same as to what has been stated by the first informant in his statement under Section 161 Cr.P.C. It is argued that the present case is a case of circumstantial in nature and there is no eye witness to the murder. It is further argued that subsequently, the police has shown the recovery of the pant of the deceased on the pointing out of the applicant from the wheat field which is an open place. It is argued that the said recovery is a planted recovery. It is argued that at the same time, police has recorded the statement of the applicant which is being relied and as being confession of the applicant but the same is an inadmissible piece of evidence. It is further argued that co-accused Meera has been granted bail by a co-ordinate Bench of this Court vide order dated 23.05.2019 passed in Crl. Misc. Bail Application No. 21716 of 2019 (Meera Vs. State of U.P.), copy of the order has been produced before the Court which is taken on record. It is argued that the applicant has no criminal hsitory as stated in para 26 of the affidavit and is in jail since 16.03.2019.
Per contra, learned brief holder for the State opposed the prayer for bail and argued that the evidence against the applicant is of the first informant and Chote Lal Yadav who have stated that the deceased used to have go to place and had gone to his place on the day of incident, the recovery of the pant on the pointing out of the applicant and the confession of the applicant to the police.
Looking to the facts and circumstances of the case, it is a fit case for bail, I am inclined to release the applicant on bail.
Let the applicant Mothai Bind @ Mata Prasad, 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 :- 17.2.2021 M. ARIF (Samit Gopal, J.)