Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43494 of 2021 Applicant :- Rakesh Yadav Opposite Party :- State of U.P.
Counsel for Applicant :- Namit Srivastava,Shiva Prakash Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Namit Srivastava, learned counsels for the applicant and 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- Rakesh Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 83 of 2021, under Sections 147, 149, 302, 201 I.P.C., registered at Police Station Chakiya, District Chandauli.
Learned counsel for the applicant argued that although the applicant is named in the first information report along with six named and two unknown persons but his implication in the present case, is false and without any evidence. It is argued that allegation in the first information report is that the deceased was taken away by the said accused persons including the applicant on 28.03.2021 at about 08:00 pm from his house and his dead body was recovered then on 29.03.2021 at about 07:00 am which was lying in drain in jungle and his motorcycle was lying nearby in a field. In the first information report itself, it is stated that there is a suspicion that all the accused persons have murdered the deceased. It is argued that although the doctor conducting the postmortem examination has found as many as 15 injuries on the body of the deceased but has opined the cause of death as Asphyxia as a result of antemortem strangulation which is due to the injury no. 13 which is a continuous ligature mark. It is argued that the other injuries as such, did not contribute to the death of the deceased. It is argued that the present case, is a case of circumstantial evidence and there is no eye- witness to the murder. It is further argued that although the applicant is named in the first information report but there is no specification of the role as there is no eye-witness to the murder and general role of taking away the deceased has been assigned to the named seven accused and two unknown persons. It is argued that except for the evidence of taking away of the deceased, there is no other evidence to implicate the applicant in the present case. Learned counsel has argued that the prosecution has stated that the motorcycle of the deceased was found from the field of co-accused Vinod Chauhan. It is argued that there is no recovery of any incriminating material either from the possession or pointing out of the applicant and the recovery is of Rs. 210/- only from the possession of the applicant which is not incriminating at all. It is further argued that co-accused Vinod Chauhan has been granted bail by this Court vide order dated 4.8.2021 passed in Criminal Misc. Bail Application No.27317 of 2021, copy of the said order is annexed s Annexure 12 to the affidavit filed in support of bail application.
It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the applicant is not having any criminal history as stated in para 23 of the affidavit and he is in jail since 31.03.2021 and there is no likelihood of early conclusion of trial and hence, the applicant may be released on bail during pendency of trial.
Learned A.G.A. and learned counsel for the first informant have opposed the prayer for bail and argued that the applicant along with other co-accused persons had taken away the deceased from his house and were last seen with him after which on the next day at 7:00 am, the dead body of the deceased was found and as such, they are implicated in the present case.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the present case, is a case of circumstantial evidence and there is no eye-witness to the murder. The cause of death is Asphyxia as a result of antemortem strangulation which is the injury no. 13, the same is ligature mark in the neck of the deceased. Co-accused Vinod Chauhan has been granted bail.
Looking to the facts and circumstances of this case, the nature of evidence, the unlikelihood of early conclusion of trial 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-Rakesh Yadav, 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.
(Samit Gopal, J.) Order Date :- 28.10.2021 Gaurav