Court No. - 43 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21001 of 2021 Applicant :- Rahil Opposite Party :- State of U.P.
Counsel for Applicant :- Araf Khan,Lihazur Rahman Khan Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through Video Conferencing.
Heard Sri Araf Khan, learned counsel for the applicant, Sri J.B. Singh, learned AGA for the State who have appeared through Video Conferencing.
Perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Rahil, seeking enlargement on bail during trial in connection with Case Crime No. 218 of 2020, under Section(s) 302, 120B I.P.C. registered at P.S. Mahavan, District Mathura.
Learned counsel for the applicant argued that the applicant is not named in the F.I.R. It is argued that the F.I.R. has been lodged by Smt. Kumkum Sharma the mother of the deceased, against Shivshankar Gautam who is her son-in-law, Shivam Gautam who is brother of co-accused Shivshankar Gautam and some unknown persons for committing murder of her son Udit Sharma. It is argued that the present case is a case of circumstantial in nature having no eye witness to the incident. It is next argued that name of the applicant has surfaced for the first time in the extra-judicial confession of co-accused Shivshankar Gautam and Shivam Gautam on 28.12.2020 wherein they have stated that co-accused Samir Alvi shot the deceased with 315 bore country made pistol, co-accused Shivam assaulted the deceased with brick on his head and the applicant also assaulted the deceased with 'nastar' (which as per learned counsel is a small sharp edged knife like weapon). It is argued that the post mortem examination of the deceased was conducted wherein the doctor has opined the cause of death due to shock and haemorrhage as a result of firearm injury. It is argued that the police has shown recovery of mobile phone on the pointing out of the applicant on 29.12.2020 but the same is in no manner incriminating to that of the applicant and even the CDR which was obtained during investigation shows that the same belongs to co-accused Samir Alvi.
It is argued that the deceased went missing on 27.12.2020 at about 7.30 A.M. but the F.I.R. has been registered after a great delay i.e. 28.12.2020 at about 02.36 P.M. after recovery of dead body. But in the meantime there was no complaint or even a missing report given by the first informant to the police or any authority. It is argued that even the prosecution is attempting to show that the applicant conspired with the other co-accused persons for committing murder the deceased but the same has no evidence whatsoever. It is argued that the applicant has no other criminal antecedents as stated in para-12 of the affidavit and is in jail since 29.12.2020.
Per contra, learned AGA opposed the prayer for bail and argued that the applicant, as per confessional statement of co-accused Shivshankar Gautam and Shivam Gautam, has been assigned the role of assaulting the deceased with 'nastar'. But learned A.G.A. could not dispute the finding given by the doctor conducting post mortem examination regarding cause of death. It is argued that the applicant is involved in the murder of the deceased as has been stated by the said two co-accused persons. It is argued that the prayer for bail be rejected.
After having heard learned counsel for the parties and perusing the record, it is apparent that the applicant is not named in the F.I.R., name of the applicant has surfaced for the first time in the statement of co-accused Shivshankar Gautam and Shivam Gautam which is inadmissible piece of evidence. The alleged recovery of mobile phone does not in any manner become incriminating to the applicant. The cause of death of the deceased has been stated to be due to firearm injury which is injury no. 9 as per post mortem examination report.
Looking to 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- Rahil, be released on bail in the aforesaid case crime number on furnishing a personal bond and two 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) 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.
(iii) 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.
(iv) 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.
(V) 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.
(vi) 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.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.5.2021/Naresh
Digitally signed by Justice Samit Gopal Date: 2021.05.25 16:40:58 IST Reason: Document Owner Location: High Court of Judicature at Allahabad