Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38837 of 2021 Applicant :- Neeraj Lodh Opposite Party :- State of U.P.
Counsel for Applicant :- Shahroze Khan Counsel for Opposite Party :- G.A.,Sanjai Kumar Pandey
Hon'ble Samit Gopal,J.
Heard Sri Shahroze Khan, learned counsel for the applicant, Sri Sanjai Kumar Pandey, learned counsel for the first informant, Sri B.B.Upadhyay, 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 Neeraj Lodh, seeking enlargement on bail during trial in connection with Case Crime No. 134 of 2021, under Sections 147, 302, 201, 120-B/34 I.P.C., registered at P.S. Siddharth Nagar, District - Siddharth Nagar.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the present incident was alleged to have been taken place on 20.6.2021 at about 9.00 hours but the first information report was lodged on 21.6.2021 at 15.50 hours by Smt.Smt. Madhuri wife of the deceased Ram Chandra Lodhi. In the first information report, nine persons including the applicant have been named as accused alleging therein that her husband is having a dispute with regard to property with his co-laterals. On 20.6.2021 at about 7 p.m. he went from the house to attend the call of nature. The accused persons who are having enmity with him, murdered him by strangulation and then threw his body in the field of Niaz. The body was searched a lot and then it was recovered. Learned counsel for the applicant argued that there is no eyewitness to the murder. The present case is a case of circumstantial evidence. The inquest on the body of the deceased was conducted on 21.6.2021 at 17.30 hours of which Chandrika Prasad Gupta and Radhey Shayam Lodh, who are the witnesses apart from three others, did not disclose any specific fact to the investigating officer. The first informant in her statement under Section 161 Cr.P.C. also reiterates the versions of the first information report. Subsequently, her second statement under Section 161 Cr.P.C. was recorded wherein she stated that she has come to know that Chandrika, Radhey Shyam, Shambhu and Ranjit Singh had seen the accused Neeraj, Jitendra Lodh, the present applicant, and Umesh Tiwari going with the deceased. It is argued that subsequently then on 30.6.2021, which is after ten days of the incident, the statements of Chandrika, Shambhu and Radhey Shyam Lodh were recorded who have stated that while they were going to attend the call of the nature, they had seen the said accused persons going with the deceased on 20.6.2021 and later on, they came to know that the said person has been murdered. It is argued that the same is afterthought. There is no eyewitness to the murder. The incident is a night incident. The disclosure of the story of last seen is an afterthought. There is no recovery of any incriminating material either from the possession or of pointing out of the applicant. The deceased died in the night after which the dead body was recovered on the next day afternoon and then the first information report was lodged. Even the story of last seen is an afterthought as the said witnesses were the witnesses of inquest, who did not state about the same to the investigating officer or anyone else. It is further argued that co-accused Jitendra Lodh has already been granted bail by this Court vide order dated 16.12.2021 passed in Criminal Misc. Bail Application No. 38565 of 2021 (Jitendra Lodh Vs. State of U.P.), copy of which has been produced before this Court which has been taken on record. Bail is being pressed on the ground of parity. It is argued that the applicant has no criminal history as stated in paragraph 35 of the affidavit and is in jail since 2.7.2021.
Per contra, learned counsel for the first informant and learned A.G.A. opposed the prayer for bail and argued that the applicant along with other accused persons were last seen with the deceased after which the deceased was done to death. It is argued that there is an enmity of the applicant with the deceased, which was the reason for murder, therefore, the bail application may be rejected.
After having heard learned counsel for the parties and perusing the records, it is apparent that the present case is a case of circumstantial evidence. The evidence is of last seen of the applicant and other accused person with the deceased. The first informant is not a witness either to the murder and the story of last seen has surfaced for the first time after ten days of the incident. Identically placed co- accused Jitendra Lodh has been granted bail by this Court. The chain in the circumstances are conspicuously missing.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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- Neeraj Lodh, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one to be his family member and the other to be local) 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:-
1. The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
2. 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.
3 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.
4. 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.
5. 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.
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.
Order Date :- 24.12.2021 Vikram (Samit Gopal,J.)