Court No. - 76
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11121 of 2021 Applicant :- Om Prakash @ Gapochi And Another Opposite Party :- State of U.P.
Counsel for Applicant :- Akhilesh Kumar,Urmila Shukla Counsel for Opposite Party :- G.A.,Pradeep Kumar
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Akhilesh Kumar, learned counsel for the applicants, Sri Pradeep Kumar, learned counsel for the informant and Sri G.P. Singh, learned A.G.A. for State and perused the record.
This application under Section 439 Cr.P.C. has been moved seeking bail in Case Crime No. 409 of 2020 under Sections 147, 148, 149, 307/34, 302/34, 504, 506 I.P.C., Police Station Bindki, District Fatehpur, during the pendency of trial.
As per F.I.R. lodged by the Govind Kumar, on 24.9.2020 at about 1:45 AM in the night when his elder brother Prem Shankar @ Mauna was sleeping under the tin shed, due to the previous enmity because of financial dispute between the two sides, accused applicant and co-accused who were nine in numbers came there armed and opened fire upon the deceased Prem Shankar @ Mauna by which he died on the spot. After hearing the sound of fire, informant and his mother Gaura Devi who were sleeping inside the house came charging and saw in the light of electricity that all the accused were there who were indentified and they were having fire arm in their hands and co- accused Dinesh was aiming upon his brother and all the said persons had, after having seen informant and his mother, stated that they all should be killed and at this exhortation, co-accused Dharmendra opened fire upon the informant and after that informant and his mother fled inside their house in order to save their lives. Thereafter accused fled from the scene of occurrence. In post-mortem report, two fire arm wounds are found to have been sustained, one at the mouth and other on the chest, which were the cause of death of the deceased.
Learned counsel for the applicants contends that applicants are innocent. They have been falsely implicated in the present case. He has drawn attention to the statement of the eye-witness Pinki Devi who has stated that she had seen in the light of electricity that co-accused Dinesh had made second fire upon her husband Prem Shankar @ Mauna at his chest, therefore, it is argued that main role has been assigned to co-accused Dinesh and not to the applicants. As regards recovery, it is stated that no recovery has been made from the applicants and the same has been made from two other co-accused namely Puttu and co-accused Dinesh. One country made pistol has been recovered from each of the above two accused along with two cartridges. Applicant no. 1 has criminal history of two cases which has been explained in paragraph no. 2 and 3 of the supplementary affidavit, in one compromise has been effected and in the other, bail has been granted to him. They are in jail since 28.9.2020 and 27.9.2020, If they are released on bail, they would not misuse the liberty.
Learned counsel for the informant has vehemently opposed the prayer of bail and has drawn attention to the complaint made before S.D.M. on Samadhan Diwas which is in respect of earlier occurrence in which attempt of killing the deceased was made, the said paper is taken on record, therefore, it is argued that applicant had full motive to kill the deceased.
Learned AGA has opposed the prayer of bail, but has not controverted the aforesaid fact.
In view of above arguments, looking to the fact that no recvoery has been made of any incriminating article from the the applicants as the same has been made from two other co- accused namely Puttu and Dinesh and the deceased has also sustained only two injuries which appeared to have been caused by Dinesh and Puttu as eye-witness Pinki has stated that co- accused Dinesh is found to have been aiming upon the deceased, taking into consideration the quantum of punishment, nature of offence, there are no chances of accused fleeing from justice and period of detention, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Let the applicants Om Prakash @ Gapochi and Maharajeen @ Ghapada involved in aforesaid crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that:-
1. The applicants shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
2. The applicants shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicants is placed before the Court, the same would be entertained.
Order Date :- 8.4.2021 A.P. Pandey