Court No. - 44
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44814 of 2018 Applicant :- Mukesh Opposite Party :- State Of U.P.
Counsel for Applicant :- Ajay Kumar Mishra Counsel for Opposite Party :- G.A.,Jitendra Partap Singh,J P Singh
Hon'ble Rahul Chaturvedi,J.
Vakalatnaama filed by Sri JP Singh, Advocate today on behalf of private opposite party is taken on record.
Heard learned counsel for the applicant, private opposite party, learned AGA and perused the record.
Perusal of record reveals that for the incident of 15.01.2017 occurred between 13.30 to 14.00 hours, FIR was got registered on the same day at 17.15 hours by Chandrasen against five named accused persons, including the applicant-Mukesh, under sections 147, 148, 149, 307, 302, 404 and 34 IPC at P.S. Budhana, District Muzaffarnagar. As per the FIR, the informant along with his Gulveer (Gullu) were going from Budhana to their village Kurthal on a motorcycle. On the way near a culvert one of the co-accused Shubham s/o Brijpal signalled them to halt and as the victim Gulveer halted his motorcycle on the signal, Shubham fired shot at his brother Gulveer (Gullu). Rest of the accomplices namely, Lokesh, Sanju and Mukesh (applicant) armed with country-made pistol/pistols tried to drag the victim off the way from the road side whereupon the informant and one Hari Om raised alarm. On their hue and cry, the aforesaid miscreants thrusted hectic rounds of fire on the victim as well as on them.The post mortem examination report of the cadaver of the deceased reveals that he sustained following ante mortem injuries i.e., one entry wound on left side back of head 1.5 cm x 1.0 cm x cavity 11.0 cm away and behind left ear pinna and another exit wound, right side of the head measuring 4.0 cm x 3.0 cm x cavity deep, 8.0 cm above right pinna. Both the aforesaid wounds were opined to coinciding with each other on dissection. On the chest, one entry wound back of right side chest 1.5 cm x 1.0 cm x cavity deep and exit wound at left side chest 2.0 cm x 1.5. cm x cavity deep 5.0 cm medial left nipple at 10 O'Clock positions. Both the aforesaid wounds were coinciding with each other on dissection. It is apparently clear that the injuries sustained by the deceased are on the vital part of his body.
It is submitted by the learned counsel for the applicant that role of firing at the victim has been attributed to co-accused Shubham, which can be easily borne out from the perusal of statements of the informant as well as the other witnesses, recorded under section 161 Cr.P.C. The version of the FIR and the report of the post mortem examination of the deceased are also not corroborative with each to some extent. No incriminating material was found either from the possession or on the pointing out of the applicant. No overt act could be attributed to the applicant by the police. It has been wrongly named in the FIR due to village goupism. The applicant is suffering incarceration in jail since 08.05.2018.
Learned private opposite party and AGA vehemently opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, this Court is of the view that the applicant has made out a case for bail.
Let the applicant Mukesh, involved in S.T. No. 826 of 2018 arising out of Case Crime No. 108 of 2017, under sections 147, 148, 149, 307, 302, 404 and 34 IPC, P.S. Budhana, District Muzaffarnagar be released on bail on furnishing a personal bond and two heavy 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 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 30.11.2018 shailesh