Court No. - 79
Reserved on 22.07.2021 Delivered on 27.07.2021
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17451 of 2019 Applicant :- Yogesh Yadav Opposite Party :- State of U.P.
Counsel for Applicant :- Babu Lal Ram,Abhishek Kumar Jaiswal,Amit Daga,Ashish Kumar Singh,Pradeep Kumar Singh,Virendra Kumar Counsel for Opposite Party :- G.A.,Anil Pratap Singh
Hon'ble Saurabh Shyam Shamshery,J.
1. Applicant-Yogesh Yadav, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his Bail Application vide order dated 06.03.2019, passed by Additional District and Sessions Judge, Court No. 10 (POCSO), Varanasi, in Case Crime No.597 of 2018, under Sections 376D, 302 IPC and 3/4 POCSO Act, Police Station Chaubeypur, District Varanasi.
2. Mother of deceased (a girl, aged about 16 years) lodged an FIR against applicant and two other co-accused on 24.11.2018 alleging that her daughter went to attend nature’s call at mid-night on 20.11.2018, however, when she did not return for considerable time, family members tried to search her but she remained untraced. Early morning on the next day, an information was received about a dead body lying near railway track. Family members reached at the place and dead body was identified of her daughter. There were head injuries on the dead body and apparently she was raped also. The named accused were suspected to be involved in the crime. Post mortem of dead body was conducted on 21.11.2018 and cause of death was comma as a result of anti mortem head injury.
3. Learned counsel for applicant submitted that applicant has been falsely implicated in the present case. Deceased had love affair with co- accused, Shashi Yadav and applicant being his friend is falsely implicated in the present case without any basis. The main accused, Shashi Yadav used to call deceased by phone having a SIM which was issued in the name of the applicant. The main accused has admitted in his confession about committing rape and murder of deceased. Applicant and other co-accused were alleged to be there at the time of occurrence. However, no active participation was even alleged in the confession. It is also argued that there is no evidentiary value of confessional statement. There is no allegation on the applicant of rape or causing homicide. It is also submitted that applicant has no criminal history and is languishing in jail since 26.11.2018 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
4. Per contra, learned A.G.A. appearing for State and learned counsel appearing for Informant, have opposed the prayer for bail and submit that applicant was mostly seen with main accused. His SIM card was used for making calls to deceased. Applicant and co-accused remained present at the place of occurrence when deceased was raped and later on murdered by main accused.
5. Heard Sri Amit Daga, learned counsel for applicant, Sri Anil Pratap Singh, learned counsel for Informant, learned A.G.A. for State and perused the record.
6(A) Law on bail is well settled that 'Bail is rule a and Jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
7. Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that there is no direct evidence against applicant; prosecution case is rest upon circumstantial evidence; the only evidence against applicant is the confessional statement of main accused; allegation in the confessional statement was only that applicant was present at the time of occurrence; prima facie applicant has no active participation in the actual offence of rape and murder of deceased; the case of applicant is distinguishable from main accused, Shashi Yadav; and also that applicant has no criminal history and that he is languishing in jail since 26.11.2018, this Court is of the view that a case of grant of bail is made out.
8. Let the applicant- Yogesh Yadav be released on bail in the aforesaid case crime number 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant will abide the orders of Court, will attend the Court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.
(v) 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 and the Trial Court may proceed against him under Section 229-A IPC.
(vi) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
9. 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 applicant to prison.
10. The bail application is allowed.
11. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
12. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
13. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
14. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :-27.07.2021 AK