High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5212 of 2022 Applicant :- Rafeek Opposite Party :- State of U.P. Counsel for Applicant :- Tarun Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Legal Reasoning
Heard Shri Tarun Kumar Tripathi, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record. This bail application has been moved by the accused/applicant- Rafeek for grant of bail, in Case Crime No. 312 of 2021, under Sections 364, 302 and 201/34 I.P.C., Police Station Kotwali Orai, District Jalaun, during trial. Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication and the applicant is not having any motive to commit the offence as claimed by the prosecution. It is further submitted that no one was named in the first information report lodged by one Smt. Bhuri, who is the mother of deceased Rashid and sister of deceased Nasim and it has only been stated in the missing report as well as in the first information report lodged by her that on 29.04.2021 at about 5:00 pm. both deceased persons had gone to jungle after informing that they will return within hour and thereafter their dead bodies were found in the jungle in decomposed condition and the cause of death could not be ascertained. On 04.05.2021 the applicant along with other co-accused persons was arrested and all accused persons have confessed that instant applicant Rafeek was having enmity with the deceased persons and, therefore, he hatched a conspiracy and in furtherance of the same he had sent co-accused Pramod Yadav and Deepak Ahirwar to bring the deceased persons and when they brought the deceased persons to the godown of one Om Prakash Yadav @ Rinku all accused persons had assaulted them and after committing murder of both these persons they burnt their bodies. It is vehemently submitted on behalf of the applicant that the motive which has been assigned to the instant applicant for commission of the crime is very weak. The confession which has been allegedly made by the instant applicant in the custody of the police could not be proved against him by virtue of the bar contained under Section 26 of the Indian Evidence Act and no recovery under Section 27 of the Indian Evidence Act has been made from applicant. Thus, apart from the confessional statement of the applicant and other co-accused persons, there is no any other material available which may connect the applicant with the crime. It is also submitted that there are material contradictions in the story as unveiled by the informant and the confession allegedly made by the applicant as there is no mention either in the F.I.R. or in the statement of the informant that both deceased persons were ever seen in the company of co-accused persons Pramod Yadav and Deepak Ahirwar and therefore, the police instead of investigating the case in right perspective has made the instant applicant and other co-accused persons as scapegoats in order to close the case. It is further submitted that the co-accused persons namely Vivek Dubey @ Commando and Pramod Yadav have been granted bail by co-ordinate Benches of this Court, vide orders dated 16.02.2022 and 03.03.2022 passed in Crl. Misc. Bail Application Nos. 4991 of 2022 and 41914 of 2021, respectively. It is also submitted that applicant is in jail in this case since 05.05.2021 and he is not having any previous criminal history. Charge-sheet in this case has already been submitted and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty. Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed heinous offence and, therefore, he is not entitled to be released on bail, but could not confront the fact that identically placed co-accused persons have been granted bail by co-ordinate Benches of this Court. Having heard learned counsel for the parties and having perused the record, it is evident that the applicant was not named in the F.I.R. The complicity of the applicant has surfaced in the confessional statement of the instant applicant as well as in the confessional statements made by other co-accused persons in the custody of the police. It has been alleged that there is material contradictions in the story as unveiled by the informant and the confessional statement made by the applicant and other co-accused persons. It is also stated that the motive which has been assigned for commission of the crime is highly improbable, weak and could not be believed. No recovery has either been effected from or on the pointing of the applicant. Applicant is in jail in this case since 05.05.2021 without any previous criminal antecedents. Charge-sheet in this case has also been submitted and the presence of the applicant could be secured before the trial court by placing adequate conditions. Identically placed co-accused persons have been granted bail by co-ordinate Benches of this Court. The case is based on circumstantial evidence and it is vehemently submitted that circumstances alleged against the applicant are weak and are not forming any chain. Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed. Let the accused/applicant- Rafeek involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) 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. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case. Order Date :- 21.4.2022 Praveen Digitally signed by PRAVEEN KUMAR Date: 2022.04.22 10:42:36 IST Reason: Location: High Court of Judicature at Allahabad