Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46417 of 2018 Applicant :- Shivam Opposite Party :- State Of U.P.
Counsel for Applicant :- Brij Lal Shukla Counsel for Opposite Party :- G.A.,Pravin Kumar Mishra
Hon'ble Harsh Kumar,J.
Counter affidavits filed by learned AGA and learned counsel for first informant are taken on record.
Heard B.L. Shukla, learned counsel for applicant, Pravin Kumar Mishra, learned counsel for first informant, learned A.G.A. and perused the record.
Learned counsel for applicant contends that applicant has been falsely implicated in FIR lodged after a period of over 30 days from alleged incident; that as per averments made in FIR, lodged by Smt. Usha Devi on 23.10.2017, her husband Durgesh was called on for business by applicant and co-accused persons from Hathras to Noida on the pretext that there is a good scope of business of auto-ricksha in Noida, and in planed manner, accused persons who are related to each other, firstly administered him liquor, and thereafter, caused his death by committing marpeet, and informed first informant in the midnight of 31.08.2017; that it is also contended that in FIR that there is a property dispute on account of which murder of Durgesh was committed by accused persons; that applicant has been falsely implicated on the basis of suspicion, and there is no eye witness account of incident; that it is wrong to say that applicant ever administered liquor to deceased or committed marpeet with him or caused his death; that this case is based on circumstantial evidence and there is no incriminating evidence against applicant; that applicant had no motive to cause death of Durgesh and was not going to be benefited by his death in any manner whatsoever; that applicant has no criminal history; that applicant undertakes that he will not misuse the liberty of bail; that applicant is in custody since 11.09.2018.
Learned A.G.A. and learned counsel for first informant vehemently opposed the prayer of bail and contended that since deceased was with applicant and co-accused persons, the burden of proving that he died as a natural death lies on accused persons; that postmortem report of deceased shows that as many as seven injuries with opinion of Medical Officer that cause of death is due to comma as a result of ante-mortem injuries, so it is not a case of natural death; that accused persons are absconding and applicant was taken into custody after a period of over 1 year from incident.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment, as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Shivam be released on bail in Case Crime No. 930 of 2017 under Sections 147, 302, 120-B I.P.C., P.S. Kasna District G.B. Nagar on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
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.
Order Date :- 19.12.2018 M. ARIF