Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30772 of 2021 Applicant :- Shivam @ Simma Nut Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Dubey Counsel for Opposite Party :- G.A.,Ashish Kumar,Lalit Kumar Tripathi,Madan Mohan
Hon'ble Samit Gopal,J.
Heard Sri Ajay Dubey, learned counsel for the applicant, Sri Lalit Kumar Tripathi, learned counsel for the first informant 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- Shivam @ Simma Nut, seeking enlargement on bail during trial in connection with Case Crime No.356 of 2021, under Sections 147, 148, 149, 302, 120-B I.P.C., registered at Police Station Etmadadaulla, District Agra.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that although the applicant is named in the FIR along with five other co-accused persons but the allegation therein is that the first informant was told by the deceased Shivam while being in an injured condition that the applicant caught-hold one of his hand and co- accused Sonu Jaat caught-hold of his other hand on which Alok Yadav exhorted co-accused Sunny Deol @ Chandrasen to shoot on him as he was suspected to be transferring some information to someone. Dinesh @ Prince and Abhishek Yadav are the alleged eye-witnesses who were travelling with the deceased in his car. The said two eye-witnesses have stated that Sonu Jaat fired upon the deceased Shivam Yadav which missed him and then Sunny Deol @ Chandrasen fired a close shot on his chest due to which he became unconscious. It is further argued that the said two eye-witnesses have also named the applicant along with five other persons but have not assigned any specific role of shooting or any overt-act to the applicant but only stated of his only presence at the place of occurrence. The deceased as per postmortem report has received a single fire- arm wound which has exit and the cause of death is the said injury, as such the role of the applicant is distinguishable with that of co-accused Sunny Deol @ Chandrasen. Learned counsel has placed para 19 of the affidavit and argued that the applicant has been falsely implicated due to the fact that a day prior to the present incident, brother of the applicant Guddu lodged a written complaint and also a complaint on dial 112 number against one Mukesh Jadaun regarding some abusing and stoning and informant Suraj Singh is best friend of Mukesh Jadaun but on the next day the present incident happened wherein the applicant was included in the list of accused persons with malafide intention. There is no recovery of any incriminating material either from the possession of the applicant or at his pointing out. It has also been pointed out that the applicant is not having any criminal history as stated in para 18 of the affidavit. The applicant is in jail since 31.05.2021.
Per contra learned counsel for the first informant and learned A.G.A. opposed the prayer for bail and argued that the applicant had a common intention to commit the offence as is evident from the fact that he was present at the spot along with country-made pistol which would go to show that he was in an active participation of the incident, as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that the applicant in the FIR the role of catching-hold of one hand of the deceased Shivam has been assigned to the applicant but the eye-witnesses Dinesh @ Prince and Abhishek Yadav have not assigned any specific role or overt act to the applicant except his presence at the place of occurrence and they have assigned the role of shooting to co-accused Sunny Deol @ Chandrasen. The deceased has received single fire-arm injury.
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.
The case of the applicant is distinguishable with that of co-accused Sunny Deol @ Chandrasen.
Let the applicant-Shivam @ Simma Nut, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one should be of his family member and the other should be of a local person) 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 :- 21.9.2021 Gaurav