Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31718 of 2021 Applicant :- Zakir Opposite Party :- State of U.P.
Counsel for Applicant :- Amit Daga,Vipul Kumar Singh Counsel for Opposite Party :- G.A.,Santosh Kumar Gupta
Hon'ble Samit Gopal,J.
Heard Sri Amit Daga, learned counsel for the applicant, Sri Santosh Kumar Gupta, learned counsel for the first informant and Sri Sanjay Singh, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Zakir, seeking enlargement on bail during trial in connection with Case Crime No. 86 of 2021, under Sections 302, 120-B & 506 I.P.C., registered at Police Station Amroha Nagar, District Amroha.
Learned counsel for the applicant argued that the applicant is not named in the first information report which has been lodged on 08.03.2021 for an incident alleged to have taken place on 07.03.2021. In the said first information report, four persons namely Satendra @ Pappu, Ramdas, Kalua and Kailash are named as accused persons. Subsequently, the statement of the first informant under Section 161 Cr.P.C. was recorded and even therein, he does not name the applicant. Later on, an application dated 09.03.2021 was given to the police which is registered in GD No. 16 dated 10.03.2021 of the police station where for the first time, the name of the applicant has surfaced and it is stated that there was some dispute between the applicant and the deceased with regards to plotting of some land as such, the applicant wanted to eliminate the deceased and had conspired with Kailash and then both of them along with Salim and Usman committed the murder of Harish Chandra Saini, the brother of the first informant. It is argued that as per the postmortem report, the deceased has received two firearm wounds of entry which have two exit wounds. From the possession of co-accused Salim Ahmad and Usman Khan, country-made pistols have been recovered, two different first information reports have been registered against them under the Arms Act.
It is argued that the implication of the applicant in the present case is false and as per the prosecution case, the applicant is stated to have conspired for the murder but there is no evidence to show any meeting of mind between the accused persons for conspiring for the murder. It is further argued that there was a CCTV footage of the place of occurrence which was taken in possession by the Investigating Officer, reference of which is in CD No.4, dated 12.03.2021 and even therein the Investigating Officer has stated that co-accused Salim Ahmad and Usman Khan are seen near the place of occurrence, the applicant is not seen therein. It is argued that there is no recovery of any incriminating material either from the possession or pointing out of the applicant. The charge-
sheet has been submitted and there are no chances of the applicant tampering with the evidence and not co-operating with the investigation. It is further argued that the present case, is a case of circumstantial evidence and there is no eye-witness to the murder. The links in the chain are conspicuously missing. It has also been pointed out that the applicant is not having any criminal history as stated in para 48 of the affidavit and he is in jail since 10.03.2021.
Per contra, learned counsel for the first informant and learned A.G.A. have opposed the prayer for bail. It is argued that the first informant after coming to know of the implication of the applicant in the present case, who had conspired for the murder, gave an application just after two days of the occurrence to the police wherein he has narrated the entire motive, has named the applicant as the person who had motive and he has conspired for the murder. It is argued that as such, the applicant is involved.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant is not named in the first information report. His name has surfaced for the first time in the application given by the first informant after two days of the incident stating that the applicant had some animosity with the deceased in connection with some dispute of land and as such, had conspired for the murder. The present case, is a case of circumstantial evidence and there is no eye-witness. There is no recovery of any incriminating material either from the possession or pointing out of the applicant.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Zakir, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) 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.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 22.9.2021 AS Rathore (Samit Gopal,J.)