High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17953 of 2021 Applicant :- Satish Opposite Party :- State of U.P. Counsel for Applicant :- Kartikeya Bhargava,Swapnil Sinha Counsel for Opposite Party :- G.A.,M.C. Singh AND Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14827 of 2020 Applicant :- Prince Opposite Party :- State of U.P. Counsel for Applicant :- Ajatshatru Pandey,Kartikeya Bhargava Counsel for Opposite Party :- G.A.,Dushyant Singh,M.C. Singh Hon'ble Rahul Chaturvedi,J.
Legal Reasoning
These are two bail applications filed on behalf of applicants Satish and Prince, arising out of same Case Crime No.1042 of 2019, u/s 364, 302, 201, 34 I.P.C., Police Station-Sikandarabad, District-Bulandshahar, and therefore, both these bail applications are being decided by a common order. Applicants are in jail since 27.12.2019 and seeking their bail during trial.
Legal Reasoning
Heard Shri Kartikeya Bhargava, learned counsel for the applicants; Shri Dushyant Singh, learned counsel for the complainant and Shri Manish Kesarwani, learned counsel representing the State. Perused the record. Genesis of the case starts rolling from lodging of the F.I.R. by one Aneesh on 26.12.2019 for the incident said to have taken place on 21.12.2019 u/s 364 I.P.C. only against four named accused persons including the applicants. As per the F.I.R., the elder brother of the informant, namely Gulshan (hence deceased) is missing since 05.30 in evening of 21.12.2019 and on 22.12.2019 his missing report was lodged. After this incident, the informant came to know that after hatching a conspiracy, the named accused persons have eliminated his brother Gulshan and hid his dead body to some unknown place. On this factual premise, learned counsel for the applicants has tried to impress the Court by making submission, that this is a case of circumstantial evidence as well as of last seen evidence with broken units in the chain of circumstances and do not inspire with authority indicting the involvement of applicants in commission of the offence. It is further submitted by the counsel, that after lodging of the F.I.R., statement u/s 161 Cr.P.C. of the informant was recorded, in which he stated that on 22.12.2019 on a hearsay evidence he came to know that the named accused persons assaulted his brother and thereafter eliminated him. Shobi @ Soni, Satish S/o Charan Singh and other villagers have seen the named accused persons assaulting and dragging Gulshan inside Satish's residence. The informant is not an eye-witness of the incident. Post-mortem report of the deceased also indicates that he sustained two injuries; one over his neck and his hyoid bone was found fractured and second; a traumatic swelling on the right side of the chest over the deceased. After conducting the post-mortem report, the doctor has clearly opined that the cause of death of the deceased is "asphyxia as a result of throttling" and time period of death is 3 to 5 days back, which after computing comes the same date when the missing report was lodged i.e. 22.12.2019. After considerable delay of 24-25 days, on 18.01.2021 "Majeed Bayan" of the informant was taken, in which for the first time the mental element/mens rea was also got involved, stating that on account of certain balance amount, the deceased was nurturing a bad breath against the applicants and they were in quarreling terms. The first informant further states that on 22.12.2019 around 5.30 in the evening the named accused persons committed marpeet with the deceased and killed him. This incident, to the extent of marpeet, was seen by the co- villagers. No justifiable reason is coming forward for this delayed revelation of these facts. It is further contended by learned counsel for the applicants that on the joint pointing out of the applicants, a gunny bag was recovered at the bank of a local canal, but there is no recovery memo of the dead body of the deceased Gulshan was prepared by the police. The motive part or mens rea is extremely feeble and weak and that too, same has been surfaced after considerable delay of 24-25 days of the incident. Under the circumstances, the prosecution case do not generate requisite confidence in the prosecution story. It has been pointed out by learned counsel for the applicants, that applicant Prince has got no criminal antecedents whereas applicant Satish has got antecedents of two cases, out of which, in one case he has been acquitted and in another one he is on bail. Per contra, learned counsel for the complainant and learned counsel representing the State though opposed the prayer for bail but could not offer any satisfactory reply to the arguments advanced by the learned counsel for the applicants. Taking into account the totality of circumstances and that the case of the applicants hinges upon the broken link of circumstantial evidence which does not generate sufficient confidence with regard to the involvement of the applicants in commission of present offence and in the absence of any recovery memo of the dead body of deceased, it cannot be said with certainty that the alleged gunny bag was containing the corpus of Gulshan and also keeping in view the nature of the offence, evidence on record regarding complicity of the accused and without expressing any opinion on the merits of the case, the Court is of the view that the applicants have made out a case for bail. The bail applications are allowed. Let the applicants Satish and Prince, who are involved in aforementioned Case Crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) THE APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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. (ii) THE APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANTS 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 APPLICANTS 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 THEM IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANTS. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. It is made clear that observations made in granting bail to the applicants shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-: 1. The applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored. 2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 3. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 4. 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. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 12.1.2022 M. Kumar