Court No. - 71
Case :- CRIMINAL APPEAL No. - 4260 of 2019 Appellant :- Shivendra Respondent :- State Of U.P. And Another Counsel for Appellant :- Munesh Kumar Upadhyay,Sunil Kumar Counsel for Respondent :- G.A.,Dharm Vir Singh,N/A
Hon'ble Rajiv Gupta,J.
Counter affidavit, filed by counsel for the first informant today in Court, is taken on record.
Heard learned counsel for the appellant, learned AGA for the State as well as Sri Dharm Vir Singh, learned counsel for the first informant and perused the record.
This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant against the order dated 30.05.2019 passed by learned Special Judge (SC/ST Act), Etah in Bail Application No.1303 of 2019 (Shivendra Vs. State of U.P.), arising out of Case Crime No.15 of 2019, under Sections 147, 148, 149, 323, 352, 504, 506, 308, 304 IPC and Section 3(2)(V) of SC/ST Act, P.S. Sakeet, District Etah seeking his release on bail.
Learned counsel for the appellant has submitted that appellant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.
Learned counsel for the appellant has next submitted that the appellant is not named in the FIR and no specific role has been assigned to him. During the course of investigation, the statement of the first informant has been recorded, in which, appellant has not been nominated as an accused.
Even in the statements of the injured Mani Ram, Savan Shree and Dhani Ram, appellant has not been specifically nominated as an accused and no specific role has been assigned to him.
Subsequently, after two months in the statement of one Jai Pal Singh, one of the witnesses, for the first time, the name of Dinesh S/o Danveer has surfaced, who along with other accused persons are said to have assaulted the victims.
Thereafter, in order to show the complicity of the appellant, in the statement of one Balak Ram, it is stated that Shivendra @ Dinesh is said to have participated in the said incident.
Thus, even from the statements of the witnesses, complicity of the appellant in the present incident appear to be highly doubtful as the appellant has not been specifically nominated as an accused in the statements of the injured witnesses or the first informant.
Learned counsel for the appellant has next submitted that the appellant is in jail since 07.05.2019 and he has no criminal history to his credit, as such, he may be released on bail.
Per contra, learned AGA has opposed the prayer for bail but could not dispute the aforesaid facts and the fact that neither in the FIR nor in the statements of the witnesses recorded during the course of investigation, the name of the appellant has surfaced nor any specific role has been assigned to him and his participation in the incident appears to be highly doubtful and that the the appellant is in jail since 07.05.2019 and he has no criminal history to his credit.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.
Having regard to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, the Court is of the opinion that the appellant has made out a case for bail. The Court below erred in rejecting the bail application. The impugned order suffers from infirmity and illegality and the same is liable to be set-aside and the appeal is liable to be allowed.
Accordingly, the appeal is allowed and the impugned order rejecting the bail application of the appellant is set-aside.
Let the appellant Shivendra involved in Case Crime No.15 of 2019, under Sections 147, 148, 149, 323, 352, 504, 506, 308, 304 IPC and Section 3(2)(V) of SC/ST Act, P.S. Sakeet, District Etah be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The appellant will not tamper with the evidence during the trial.
2. The appellant will not pressurize/ intimidate the prosecution witness.
3. The appellant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 26.8.2019 Nadim