Court No. - 59
Case :- CRIMINAL APPEAL No. - 7138 of 2017 Appellant :- Shobhit Respondent :- State Of U.P. & Another Counsel for Appellant :- Kapil Tyagi Counsel for Respondent :- G.A.
Hon'ble Suneet Kumar,J.
Learned A.G.A. has filed counter affidavit which is taken on record.
Heard learned Counsel for the appellant, learned A.G.A. and perused the record.
The present Criminal Appeal has been filed against the order dated 29.8.2017 passed by Sri Anil Kumar Upadhyay, learned Special Judge S.C./S.T. Additional Session Judge, Ghaziabad in Case Crime No. 307 of 2017, under Section 364, 302, 201, 34 I.P.C. and Section 3(2)5 S.C./S.T. Act, Police Station Muradnagar, District Ghaziabad, and Second Bail Application No. 4280 of 2017 whereby bail application was rejected.
According to prosecution case, F.I.R. was lodged against unknown persons, alleging that on 17.06.2017 at night, the son of the complainant Praveen went missing; on 25.06.2017 the statement of Pramod and Pappu was recorded and they stated that deceased was last seen with co-accused Shobhit, Sandeep Panchal and the applicant; co-accused Sandeep Panchal has already been enlarged on bail by the co-ordinate Bench of this court; copy of bail order is placed on record; according to the postmortem report the cause of death was asphyxia due to strangulation; the recovery of t- shirt of the deceased was made on the pointing out of the applicant and co- accused Shobhit.
Learned counsel for the appellant/applicant submitted that the appellant is not named in the F.I.R; there is no legal evidence against the appellant; there is no eye-witness account against the applicant; the statement of Pramod and Pappu was recorded after eight days of the incident which is afterthought and with due legal consultation; the appellant has been falsely implicated in the present case due to previous enmity; it is a case of circumstantial evidence and no chain has been established; there is no eye- witness account against the applicant; there is no independent witness against the appellant; hence there is no evidence except the confessional statement of this accused before the Police personnel; in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial; he is languishing in jail since 12.07.2017(more than ten months);having no criminal history.
Learned A.G.A. has opposed the prayer for bail but admitted that there is no criminal history against appellant and submits that appeal has to be dismissed.
For the foregoing discussions, facts of the case, nature of allegation and period of custody, gravity of offence, without expressing any opinion on the merits of the case, the Court is of the view that the appellant has made out a case for bail. The appeal is allowed. Impugned order dated 10.10.2017 rejecting bail of appellant is hereby set aside.
Let the appellant/applicant Shobhit be released on bail on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:
i) The appellant/applicant shall not tamper with the prosecution evidence.
ii) The appellant/applicant shall not threaten or harass the prosecution witnesses.
iii) The appellant/applicant shall appear on the date fixed by the trial court.
iv) The appellant/applicant shall not commit an offence similar to the offence of which the appellant/applicant is accused, or suspected of the commission, of which appellant/applicant is suspected.
v) The appellant/applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant 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 court below shall be at liberty to cancel the bail.
Order Date :- 21.8.2018 Saurabh