Court No. - 71
Case :- CRIMINAL APPEAL No. - 826 of 2019 Appellant :- Vishal Ahmad Respondent :- State Of U.P. And Anr.
Counsel for Appellant :- Santosh Kumar Gupta Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
The present criminal appeal has been filed U/s 14(A)(2) of S.C./S.T. Act against the order dated 02.01.2019 passed by Additional Session Judge-II, Moradabad, in case crime No. 176 of 2018, under section 302, 201, 34 I.P.C, and 3(2)5 SC/ST Act, Police Station- Thakurdwara, District- Moradabad, whereby the bail application of the appellant has been rejected.
In para 2 of the short counter affidavit sworn by Rajesh Kumar, Circle Officer Sadar, District Moradabad, it has been stated that the information/notice with regard to filing of Criminal Appeal arising out of Case Crime No. 176 of 2018, under Sections 302, 201, 34 IPC & Section 2(5) of SC/ST Act, Police Station Thakurdwara, District Moradabad, filed by the appellant has been served upon the complainant's brother, namely, Mahipal Singh.
Learned counsel for the appellant has submitted that the appellant is wholly innocent and has been falsely implicated in the present case due to ulterior motive. He has next submitted that the appellant is not name in the F.I.R. and his name has surfaced for the first time in the statement of Nandu and Virendra Singh recorded on 13.10.2018. He has further submitted that the other evidence against the appellant is in the form of extra judicial confession made before Gaurav Bishnoi and Shailendra Kumar. As per the post-mortem report, the age of the victim has been noticed to be 30 years whereas as per version of Mahipal son of Shanker Singh, Arjun son of Shanker Singh and Lila Devi wife of Shanker Singh, mother/brother of deceased, the victim deceased was aged about 45 to 50 years which further makes the prosecution story doubtful.
Learned counsel for the appellant has next submitted that similarly placed co- accused Kashim and Shanvaz alias Shanu have already been granted bail by this Court in Criminal Appeal Nos. 655/2019 and 656/2019 vide order dated 30.05.2019 and the case of the appellant stands on the same footing as that of other co-accused who has already been granted bail. Lastly, it is submitted that the appellant is languishing in jail since 16.10.2018 and in case he is released on bail he will not misuse the liberty of the bail and will cooperate in the trial by all means.
Per contra, learned A.G.A. has opposed the prayer for bail but could not dispute the aforesaid fact.
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, I find that the court below has acted wrongly in rejecting the bail application and the impugned order dated 02.01.2019 is liable to be set-aside and appeal is liable to be allowed.
The appeal is allowed. The impugned order dated 02.01.2019 passed by Additional Sessions Judge-II, Moradabad, is set-aside and the bail application of appellant stands allowed.
Let the appellant Vishal Ahmad be released on bail in case crime No.176 of 2018, under section 302, 201, 34 I.P.C. and 3(2)5 SC/ST Act, Police Station - Thakurdwara, District - Moradabad, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to following conditions:-
(i) The appellant 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 appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant 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 appellant to prison.
Order Date :- 26.7.2019 Sachin