Heard Sri Hare Krishna Tripathi, learned counsel for the applicant, Sri Pankaj Mishra, 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 Rajeev Mishra @ Raju @ Raj Kumar seeking enlargement on bail during trial in connection with Case Crime No. 1601 of 2007, under Sections 302, 307, 201 I.P.C. and 7 Criminal Law Amendment Act, registered at Police Station Nawabad, District Jhansi.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the First Information Report of the incident was registered on 20.08.2007 at 13:30 hrs by Anil Kumar stating therein that Rajesh the son of his uncle and his uncle Shankar have a shop of auto parts behind Damru Talkies below Ashish Hotel. Both persons daily go to the shop. On 20.08.2007 as a routine, they went to bus stand Jhansi and took a two seater for their shop and as soon as they reached their shop and were getting of the said vehicle, three unknown persons came there on a motorcycle on which one person was keeping the motorcycle in a running condition and two persons fired upon Rajesh and Shankar from behind and then all three persons fired in the air to spread terror and ran away. The injured persons fell there. The police on getting information took the injured persons to the Medical College where they were being treated wherein the doctor declared Rajesh as dead. Shankar was referred to the Medical College Gwalior. It is argued that later on Shankar also died.
Learned counsel has stated that the first informant Anil Kumar in his statement recorded under Section 161 Cr.P.C. which is annexed as annexure 4 has reiterated the same as that of the First Information Report but later on has stated that his fufa Mahesh was shot earlier in which Ashok, Parvat and Bhupendra were the accused and Parvat was absconding and the other accused persons are in jail. It is suspected that the accused Parvat with his companions have committed the said offence.
Subsequently, Satyendra Bhadauriya came as an eye witness to the incident and his statement was recorded under Section 161 Cr.P.C. which is annexed as annexure 5 wherein he has for the first time on 22.08.2007 disclosed the name of the applicant, co-accused Parvat Singh and Komal Kushwaha and has stated that Parvat and Komal Kushwaha fired upon the deceased persons whereas the applicant was standing on the motorcycle which was in a running condition and then accused persons ran away on the said motorcycle and as such the role of the applicant is of facilitating the two accused persons to reach the place of occurrence and then running away after the assault.
It is argued that the trial in the present case has started in which Anil Kumar the first informant was examined as PW-1 who has been declared as hostile. Further, Satyendra Bhadauriya was examined as PW-2 who has also been declared hostile. Copies of the said statements are annexed as annexure 6 to the affidavit. Learned counsel has stated that co-accused Komal Kushwaha has been granted bail by a co-ordinate Bench of this Court vide order dated 15.03.2021 passed in Crl. Misc. Bail Application No. 40556 of 2021 (Komal Kushwaha Vs. State of U.P.), copy of the order is annexed as annexure 7 to the affidavit. It is further argued that the applicant has no motive to commit the aforesaid offence. It is further argued that the police has shown recovery of a country made pistol and two live cartridges from the possession of the applicant but the same are of no worth as the applicant has not been assigned the role of firing in the present case. It is argued that the applicant has no criminal history as stated in para 14 and is in jail since 25.11.2010 as stated in para 19 of the affidavit. It is further argued that as of now the applicant has been in jail since more than 10 years and the trial is pending in which the first informant and the alleged eye witness have been declared hostile.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the implication of the applicant is on the basis of the statement of the eye witness Satyendra Bhadauriya wherein there is an active role of the applicant of facilitating the accused reaching the place of occurrence after which they committed the incident and then they managed to fled away from the place of incident on the motorcycle which was driven by the applicant and as such his role is important and he had a vital role in the present incident. Learned counsel for the State has not disputed the fact that the applicant has no criminal history and further that he is in jail since 25.11.2010.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is not named in the First Information Report. His name has surfaced for the first time in the statement of the alleged eye witness Satyendra Bhadauriya recorded under Section 161 Cr.P.C. wherein he has been assigned the role of facilitating the movement of the co-accused Parvat and Komal Kushwaha for reaching the place of occurrence and then of fleeing away from there on the motorcycle which was driven by the applicant. The first informant and Satyendra Bhadauriya have been declared hostile in the trial. Co-accused Komal Kushwaha has been granted bail by a co-ordinate Bench of this Court who has been assigned the role of firing upon the deceased along with co-accused. The applicant is in jail since more than ten years.
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 Rajeev Mishra @ Raju @ Raj Kumar, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties of the applicant will be his family member) 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 :- 27.8.2021 M. ARIF (Samit Gopal, J.)