Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32800 of 2021 Applicant :- Saurabh Opposite Party :- State of U.P.
Counsel for Applicant :- Rishabh Agarwal Counsel for Opposite Party :- G.A.,Surendra Singh
Hon'ble Samit Gopal,J.
Heard Sri Rishabh Agarwal, learned counsel for the applicant, Sri Surendra Singh, learned counsel for the first informant and 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 Saurabh, seeking enlargement on bail during trial in connection with Case Crime No. 138 of 2021, under Section 302 I.P.C., registered at Police Station Jasrana, District Firozabad.
The prosecution version as per the First Information Report lodged on 12.04.2021 at 07:46 AM by Ram Niwas the nephew of the deceased Yaadram is that his chacha Yaadram went to sleep in the fields as per his routine wherein some unknown persons have murdered him with a sharp edged weapon on the neck. The dead body of his chacha is lying under the neem tree at the place of occurrence. The said First Information Report was registered against unknown persons.
Learned counsel for the applicant argued that the name of the applicant has surfaced for the first time on 01.06.2021 in the statement of Smt. Gayatri Devi the wife of the deceased wherein she states that co-accused Sanjoo was having enmity due to some previous dispute and he had 2-3 times threatened the deceased. The applicant happens to be the friend of co- accused Sanjoo who is living in Jisakpur the village near the village of the deceased in the house of his relatives and used to trouble the daughter and daughter-in-law by calling them on phone.
It is further argued that Rahul the son of the deceased then was interrogated on 05.06.2021 which is after a period of about 60 days of the incident who has for the first time stated at about 02:00 AM he was harvesting the crop of wheat wherein he saw Sanjoo and the applicant near his field. Learned counsel has argued that the disclosure of the naming of the applicant for the first time in the statement of Smt. Gayatri Devi is after 55 days of the incident. It is argued that Rahul the son of the deceased has also as an afterthought just in order to give the case a different colour named the applicant and has given the said statement just in order to falsely implicate him in spite of the fact that he was a witness of the inquest and his name appeared as a witness therein at serial no. 4, copy of which is annexed at page 22 and annexure 2 to the affidavit which has been placed before the Court.
It is argued that subsequently the police has shown the recovery of a knife on the pointing out of the applicant but the same is a planted recovery without any corroboration of the use of the same in the present incident and the same has been recovered from an open place on the joint pointing out of the applicant and co-accused Sanjoo from a bush. It is argued that as such the present case is a case of night incident in which the deceased was sleeping in his field and was done to death by unknown persons who was then seen on the next morning by the first informant and then the present First Information Report was registered and subsequently the name of the applicant surfaced after 55 days in the statement of the wife of the deceased and then after 60 days in the statement of Rahul who states to have seen the applicant and co-accused Sanjoo in the night at 02:00 am while he was harvesting crop of wheat going near his field. It is further argued that the present case is a case of circumstantial evidence. There is no eye witness to the murder. Links in the chain are conspicuously missing. He further argued that the applicant has no criminal history as stated in para 15 of the affidavit and is in jail since 06.06.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant has been named in the statements by the wife of the deceased and the son of the deceased namely Rahul to be involved in the present case. Further, as per the CDR, there was one call from the phone of the applicant to the phone of the daughter of the deceased on 09.04.2021 which had a conversation of 135 seconds, as such the applicant is involved in the present case.
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 for the first time comes in the statement of the wife of the deceased after 55 days and then in the statement of the son of the deceased after 60 days. There is no eye witness to the murder.
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 Saurabh, 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 :- 24.9.2021 M. ARIF (Samit Gopal, J.)