1. Heard Sri Avinash Srivastava, Advocate and Sri Mohsin Iqbal, learned counsel for applicant as well as learned A.G.A. for the State.
2. This bail application has been filed by the applicant who is an accused in Crime No. 270 of 2020 Under Sections 364, 302 and 201 of the Indian Penal Code, Police Station Rudauli, District - Faizabad/Ayodhya.
3. It has been submitted by learned counsel for applicant that this first information report was lodged by the father of the deceased on 21.07.2020 wherein it was stated that his son, the deceased is missing from14.07.2020 since 08.30 p.m. when he had gone to the other house to light the lamp. It has further been stated that in all probabilities, the applicant is responsible for kidnapping him and subsequently may have murdered him.
4. During investigation, the statement of the brother of the deceased was also recorded wherein he stated that there was some enmity between the deceased and the applicant in relations to the purchase of a house. It has also been stated that 10 days prior to the said incident there was scuffle between deceased and the applicant therefore in all probability the applicant may have murdered and disposed of the body of the deceased. Subsequently, the body of the deceased was recovered on 31.07.2020.
5. As per the recovery memo, the body was recovered on the pointing out of the applicant. As per the medical report, the body was De-composed and only the portion of the skull and a small bones were recovered. The doctor has stated in his medical opinion that the cause of death cannot be ascertain because of stage of decomposition of the said body.
6. Learned counsel for applicant in support of his bail application submitted that this is a case of circumstantial evidence. There is no evidence which has come on record either from the eye witnesses or from the last seen as to implicate the applicant to the said crime.
7. It is submitted by learned counsel for applicant that applicant is languishing in jail since 31.07.2020. The counsel contends that there is no possibility of the applicant fleeing away from justice or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
8. Learned A.G.A. on the other hand opposed the bail application. He has submitted that there are two witnesses, namely, Kamlesh Yadav and Ram Raj Nishad have clearly stated that there was some scuffle between applicant and the deceased on the night of the incident and therefore the onus clearly lies upon the applicant to prove his defence .
9. I have heard learned counsel for parties and perused the record.
10. It is clear from the first information record and subsequent to the recovery of the body that the entire allegation against the applicant are based on conjunctures and surmises where on the basis that there was previous enmity between the applicant and deceased in relation to purchase of a house and also both of them were dealing with the share and because of certain losses in business had owned leading to some dispute between both of them.
11. This Court has gone the statement of Kamlesh Yadav who on the said date has been shown to be standing in front of the house of the applicant but he has nowhere stated that he has seen the applicant and the deceased together on the night of the incident . The other statement of Ram Raj Nishad in fact a confessional statement inasmuch as he is also a co-accused in the said case, hence his statement would not be relevant for implication of the applicant.
12. Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and also looking into the fact that there is material lack of evidence for implication of the applicant and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
13. Let applicant/Shrawan Kumar Kasodhan be released on bail in the aforesaid case on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the 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 of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
14. In case of breach of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law.
15. The application stands disposed of.
16. This order shall not influence the trial court for proceeding with the trial.
17. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
18. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Alok Mathur, J.) Order Date :- 25.8.2021/Ravi/