Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42728 of 2018 Applicant :- Nand Ji Yadav Opposite Party :- State Of U.P. Counsel for Applicant :- Sanjay Kumar Counsel for Opposite Party :- G.A.
Hon'ble Harsh Kumar,J.
Supplementary affidavit filed by learned counsel for the applicant, is taken on record.
Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Sanjay Kumar, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
Learned counsel for the applicant contends that the applicant has been falsely implicated; that in the F.I.R. regarding alleged incident dated 25.11.2012 the first informant has deliberately not disclosed the plot khasra number of the agricultural field where the incident did take place; that according to the averments made in F.I.R., "on 25.11.2012 the first informant alongwith his brother Alakh Yadav and uncle Radheyshyam Yadav were sowing their filed by tractor, driven by Nagendra Yadav, when the applicant with co-accused persons armed with rifle and guns arrived there and made indiscriminate firing during which applicant allegedly fired with his rifle at driver Nagendra Yadav resulting in his death on the spot;" that the prosecution deliberately concealed the plot number; in view of the fact that the incident in question did take place at plot no. 2/115, which belongs to Smt. Radhika Devi and Buchiya Devi, the mother and aunt of the applicant respectively as they had purchased the above plot from its previous owners Hare Ram, Hare Krishna, and Jai Krishna sons of Harihar through registered sale deeds dated 28.11.2008 and 23.10.2006; that the prosecution party wants to usurp the agricultural plot belonging to mother and aunt of applicant and they unauthorisedly and forcibly attempted to grab the land on 15.03.2009 of which incident F.I.R. was lodged by applicant's brother Sooraj Yadav at Case Crime No. 76 of 2009 under Sections 389, 504, 506 and 352 I.P.C. against the father as well as other family members of the first informant; that on the fateful day, the first informant and his associates again attempted to take forcible possession over above plot no. 2/115 of the mother and aunt of the applicant and the applicant had to make fire in exercise of his right of private defence to protect his property; that in the alleged incident of indiscriminate firing no injury is alleged to have been sustained by first informant or any other persons of family members except the single fire arm injury to the deceased Nagendra Yadav; that the applicant had no intention to cause death of Nagendra and may not have any motive to cause death of driver and if in exercise of right of private defence by fire made by applicant, Nagendra sustained injury and has died, the applicant may not be considered to have committed his murder; that co-accused have been granted bail by this Court vide orders dated 26.5.2016, 22.8.2016, 21.9.2016 and 6.3.2017 passed in Criminal Misc. Bail Applications Nos. 13720 of 2016, 27551 of 2016, 32156 of of 2016 and 6774 of 2017 respectively copies filed at Annexure- 9; that the applicant has explained his criminal history in para 22 of affidavit given in support of the bail application; that the applicant undertakes that he will not misuse the liberty of bail; that the applicant is in custody since 20.04.2018.
Learned A.G.A. has vehemently opposed the prayer of bail and contended that the applicant is main shooter and by the fire made by him fatal injury has been caused to deceased Nagendra.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment, grant of bail to co-accused as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Nand Ji Yadav be released on bail in Case Crime No. 858 of 2012, under Sections 147, 148, 149, 307, 302 I.P.C., & 7 Criminal Law Amendment Act, P.S. Kotwali, District Ballia, on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
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.
Order Date :- 28.11.2018 Md Faisal