Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33181 of 2019 Applicant :- Yogendra Kumar Yadav @ Babli Opposite Party :- State Of U.P.
Counsel for Applicant :- Vidhu Bhushan Singh,Rudra Pratap Pandey Counsel for Opposite Party :- G.A.,Amit Daga,Umesh Kumar Tripathi
Hon'ble Siddharth,J.
List revised. No one appears on behalf of the informant despite putting appearance.
Heard Shri Vidhu Bhushan Singh and Shri Rudra Pratap Pandey, learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Yogendra Kumar Yadav @ Babli with a prayer to release him on bail in Case Crime No. 307 of 2017, under Sections 364-A, 120- B, 216-A, 368 IPC, Police Station Kotwali, District- Jhansi, during pendency of trial.
It is argued by the learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case with some ulterior motive.It has been submitted that applicant was not named in the FIR. The applicant has been implicated in this case on the basis of confessional statement of co- accused. The Constitution Bench of Apex Court in Hari Charan Kurmi and Jogia Hajam Vs. State of Bihar, 1964 SCR (6) 623, has observed:
"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, [1911] I.L.R. 38 CAl. 559 at 588 [1931] I.L.R. 54 Mad. 75 at 77.
(1964) 6 SCR 623 at 631-633 the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval."
Hence at this stage of consideration of bail application of the applicant, no credence can be given to the confessional statement of another co- accused The applicant is languishing in jail since 25.7.2019. Criminal history of the applicant has been explained in paragraph-19 of the affidavit filed in support of the application. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018)3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant Yogendra Kumar Yadav @ Babli involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 25.9.2019 Atul kr. sri.