Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24034 of 2018 Applicant :- Om Prakash Tripathi Alias Bhabhanar Opposite Party :- State of U.P.
Counsel for Applicant :- Rajiv Lochan Shukla,Anand Pati Tiwari Counsel for Opposite Party :- G.A.,Ghan Shyam Dubey
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Kamal Krishna, learned Senior Counsel assisted by Sri Pradeep Kumar Rai, learned counsel for the applicant; Sri Ghanshyam Dubey, learned counsel for the informant as well as Sri Abhishekh Singh, learned AGA for the State and perused the material placed on record.
2. The instant bail application has been filed on behalf of the applicant - Om Prakash Tripathi Alias Bhabhanar with a prayer to release him on bail in Case Crime No. - 328 of 2015, under Sections - 302, 364, and 201 I.P.C., Police Station - PP Ganj, District - Gorakhpur, during pendency of trial.
3. Having heard learned counsel for the parties, at present:
(i) the applicant is accused of murder and other offences, punishable with imprisonment upto life or death penalty;
(ii) against FIR lodged 14.12.2015, the applicant is in confinement since 18.12.2015;
(iii) the applicant claims to have cooperated in the investigation. In any case he is not shown to have unduly evaded arrest;
(iv) As to the criminal history, it appears that the applicant has a long criminal history of 27 cases. According to learned counsel for the informant, there are 32 cases against the applicant. In any case, perusal of the criminal history of the present applicant reveals that besides three cases involving offence under Section 307 I.P.C., there are six other cases, wherein accusation of offence under Section 302 I.P.C. has been made. In one of those cases being Case Crime No.133 of 1993, under Sections- 364, 365 and 302 I.P.C., Police Station- PP Ganj, District Gorakhpur, the applicant had been convicted, but later enlarged on bail by this Court, pending appeal. Also, it is a fact that the applicant has been acquitted in two other cases;
(v) chargesheet has already been submitted, however, at present, testimony of fact of only P.W. 2, who is the wife of the deceased, is being recorded. Therefore, there is no hope of early conclusion of the trial;
(vi) on prima facie basis, for purpose of grant of bail, it has been submitted by learned Senior Counsel for the applicant, this is a case of pure circumstantial evidence, where the allegation against the applicant is on mere suspicion, which has not been substantiated. Further, it has been submitted, the F.I.R. had been lodged by the wife of the deceased on suspicion. In her statement recorded at the trial, she claimed to have derived information from her brother-in-law. The said brother-in-law, namely, Manish Tripathi stated during police investigation that he had not seen the offence. Thus, it has been submitted that there is no material to proceed against the applicant. As to criminal history, reliance has been placed on a decision of a learned Single Judge of this Court in (Ahtesham Ahmad Zaidi Vs. State of U.P.) in Criminal Misc. Bail Application No.18724 of 2019 decided on 11.11.2019, wherein this Court reached a conclusion that the bail application cannot be rejected merely on account of criminal history. For such criminal history to become relevant, the prosecution must, prima facie, place some evidence before the Court regarding involvement of the accused person in the alleged offence. In the present case, there is no evidence brought by the prosecution, as may indicate complicity of the present applicant in the commission of offence. Hence, the present applicant is entitled to bail.
5. The bail application has been vehemently opposed by learned counsel for the informant and learned A.G.A., who would submit, at present, the trial is at a vital stage and the testimony of fact witness P.W.-2, who is wife of the deceased, is being recorded. According to learned counsel for the informant, threats had already been given to the informant that she would be done to death unless she withdraws from the prosecution. Thus, reference has been made to some written application claimed to have been filed before the trial court dated 30.11.2018 and other circumstances suggesting that the applicant and the other co-accused are seeking to derail the trial by intimidating the material witness.
6. As to the evidence, it has been submitted that though, it is true, the present case involves circumstantial evidence, however, no conclusion can be drawn at this stage.
7. Having heard learned counsel for the parties and having perused the record, in the first place, the F.I.R. allegation, though based on indirect information received, are specific against the present applicant. The truthfulness of this allegation is to be decided at the trial, wherein, at present, the first informant, who happens to be the wife of the deceased, is being examined. No conclusion may be drawn pre-maturily as to correctness or otherwise of the prosecution story at this stage, inasmuch as, undisputedly, the cross-examination of P.W.-1 has yet not concluded. The brother-in-law of the first informant and other witnesses are yet to be examined. In that light, the long criminal history of the present applicant, mentioned above, cannot be ignored, inasmuch as, in one of those cases, being Case Crime No.133 of 1993, under Sections- 364, 365 and 302 I.P.C., he has already been convicted. Prima facie, involvement of the applicant cannot also be denied, at this stage.
8. While, there can be no dispute with the law laid down by this Court in Ahtesham Ahmed Zaidi (Supra), it is also not a law that a high level of proof must always arise before the criminal history may be read. The degree of proof would remain a matter to be considered at the trial. In the facts of the present case, where the wife of the deceased has also made a written complaint to the court of intimidation at the trial, it may not be in the interest to enlarge the applicant on bail at this stage. Accordingly, the application is rejected.
9. However, the liberty of the applicant may not be kept hanging in lurch for an indefinite period of time. The trial has remained pending for more than four years and, at present, testimony of fact of only one witness has been completed. The trial is going on snail's pace and it may take decades to complete it. Accordingly, it is expected that the trial court may make all efforts to conclude the trial as expeditiously as possible, keeping in mind the principle contained in Section 309 Cr.P.C. It may also be necessary to take all steps to ensure presence of prosecution witnesses such that the trial may be concluded preferably within a period of nine months from today.
10. In case, the trial is not concluded within the aforesaid time frame, the applicant shall be at liberty to file a fresh application before appropriate Court along with a certified copy of the entire order sheet.
Order Date :- 17.12.2019 Saif