Court No. - 55
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8301 of 2018 Applicant :- Vineet Opposite Party :- State Of U.P.
Counsel for Applicant :- Atul Kumar,Sushil Kumar Pandey Counsel for Opposite Party :- G.A.,Gaurav Kakkar
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, Sri Gaurav Kakkar, learned counsel for the complainant, learned AGA and perused the record.
The applicant Vineet seeks bail in Case Crime No. 61 of 2017, under section 302 IPC, P.S. Ramala, District Baghpat. The FIR of the case was registered 25.02.2017 at 22.00 P.M., by Ashok Kumar for the alleged incident, which took place on the same day at about 20.45 P.M. against one Lalit and one unknown person. The informant claims that he is an eye witness to the incident.
Contention raised at the Bar is that the applicant has been falsely implicated in the present case. Submission made by the learned counsel for the applicant that the informant claims to be the eye witness of the incident has categorically attributed the role of the striking the victim with 'Haththi' of the tractor to co-accused Lalit s/o Chandrapal and the role attributed to the accomplice is only exhortation. This is the exact FIR version lodged by Ashok Kumar, the father of the deceased, who claims himself as an eye witness. But in the statement recorded under section 161 Cr.P.C. of the informant the name of the applicant has surfaced for the first time in which he has completed changed the entire texture of the prosecution case by inserting the name of the present accused applicant in the commission of the crime and has attributed the role of causing assault to the applicant. On similar pattern yet another eye witness Jagpal Singh has given his statement under section 161 Cr.P.C. on the very next date i.e., 26.02.2017.
As enumerated above, that the informant of the case is an eye witness of the incident, who has given vivid description of the mishap, which he has witnesses.
Their is material and unexplained change in the prosecution storcy and in the respective statements recorded under section 161 Cr.P.C. of the informant and the eye witness Jagpal Singh. It is further submitted that there is recovery of one Haththi from an open place on the alleged pointing out of the present applicant. It is argued by the learned counsel for the applicant that the recovered incriminate Haththi is measured to be around 32 Inches (4 Balisht) and 6 fingrebreadth (Angul) in length and its forehead was fitted with medical belt, therefore, it is not possible that weapon of alleged assault would cause fatal injury to the deceased. The applicant is languishing in jail since 09.03.2017,without having any criminal antecedent.
Per contra, Sri Gaurav Kakkar as well as learned AGA vehemently opposed the contentions raised by the learned counsel for the applicant. It is submitted by Sri Gaurav Kakkar that on a plain reading of the statement recorded under section 161 Cr.P.C., of the witness Jagpal Singh, the role of assaulting the deceased has been attributed to the present applicant also. There is stark contrast of the prosecution story mentioned in the FIR and the aforesaid statement of Jagpal Singh, which could not be reconciled. The applicant is not named in the FIR though he belongs to the same village but conceded that the case of the present applicant is clearly distinguishable from the case of the co- accused Lalit, who is the prime author to the fatal assault given to the deceased.
Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
Let the applicant Vineet, involved in Case Crime No. 61 of 2017, under section 302 IPC, P.S. Ramala, District Baghpat be released on bail on furnishing a personal bond and two sureties 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 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.
(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 IPC.
(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., 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 IPC.
(iv) 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.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court.
Order Date :- 29.3.2018 shailesh