High Court
Case Details
Neutral Citation No. - 2023:AHC:136452 Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24264 of 2023 Applicant :- Mahendra Singh Opposite Party :- State of U.P. Counsel for Applicant :- Sudhanshu Kumar Singh,Kameshwar Singh Counsel for Opposite Party :- G.A.,Deepak Dubey,Gyanendra Singh Hon'ble Sameer Jain,J. 1. Counter affidavit filed today on behalf of the informant is taken on record.
Legal Reasoning
2. Heard Sri Kameshwar Singh, learned counsel for the applicant, Sri Deepak Dubey, learned counsel for the informant and Dr. S.B. Maurya, learned AGA-I for the State-respondent. 3. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 0347 of 2022, under Sections 147, 148, 149, 307, 302, 201 IPC, Police Station- Pailani, District- Banda, during pendency of the trial in the court below. 4. FIR of the present case was lodged on 09.12.2022 at about 14:18 hours against the applicant and seven others and 3-4 unknown persons and according to the FIR, on 08.12.2022 at about 04:30 p.m. when informant along with his nephew Ashish Singh @ Loha had gone towards his field then applicant along with other accused persons chased his nephew and started firing and due to fire opened by them his nephew sustained fire-arm injury and fell down and thereafter they made assault through axe and threw his dead body near the house of one Munnu Sonkar. 5. It is further mentioned in the FIR that love marriage of the deceased was performed with the daughter of the applicant and due to this reason, applicant and his family members became highly inimical and earlier also applicant tried to commit his murder. 6. It is further mentioned in the FIR that on yesterday evening before sunset i.e. on 08.12.2022, applicant along with his associates committed the murder of nephew of the informant and also threw his motorcycle inside the forest and with intention to conceal his dead body, his dead body was also thrown in a pit after putting it into a sack and thereafter his dead body was covered. 7. Learned counsel for the applicant submitted that from the perusal of the FIR, it appears that incident is said to have taken place on 08.12.2022 at about 16:30 hours but FIR was lodged on next day i.e. on 09.12.2022 at about 14:18 hours after about 22 hours and this fact itself shows that informant of the case is not an eye-witness. He further submitted that when the dead body of the deceased was found in the field in a sack then only due to previous enmity, applicant along with other accused persons were made accused in the present matter and this fact is even evident from the FIR itself. 8. He further submitted that if informant would have witnessed the real incident then he would have definitely tried to save the life of his nephew and he would have definitely immediately informed about the incident in the village and to the police but he was mum for about 22 hours and after 22 hours on the next day i.e. on 09.12.2022, he lodged FIR of the present case, therefore, it appears that he was not an eye-witness. 9. He further submitted that during investigation, when the Investigating Officer recorded the statements of some other witnesses then they although, stated against the applicant but they further stated that number of accused persons ( five in number) were not participated in the incident and this fact further suggests that story narrated by the informant in the FIR and in the statements of witnesses during investigation is totally false and baseless. 10. He further submitted that actually deceased was harden criminal and he was having very long criminal history and criminal history of the deceased has been mentioned in paragraph no. 41 of the affidavit and it appears that due to his bad conduct, some unknown enemy of the deceased committed his murder but due to previous enmity, applicant has been implicated in the present matter along with other accused persons including his son. 11. He further submitted that earlier also son of applicant was implicated in a false case by the informant side and after investigation, charge-sheet has been filed against his son under Section 323 IPC. He further submits, applicant is not having any criminal history and he is in jail since 27.12.2022. 12. Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that it is a brutal murder and from the FIR, it reflects that informant was eye-witness and murder was committed in such a manner that he any how managed to escape and due to fear of accused persons, he could not immediately lodge the FIR of the present case and even if there is some delay in lodgement of the FIR then also at this stage entire prosecution case could not be discarded. 13. Sri Deepak Dubey, learned counsel for the informant further pointed out that enmity between applicant and informant side is admitted and earlier also accused persons tried to commit the murder of the deceased and in this regard a FIR was also lodged against the son of the applicant and after investigation, charge- sheet has been filed against him under Section 323 IPC. 14. He further submitted that with regard to the love marriage, dispute between both the sides was pending and after marriage, deceased also approached this Court for his safety and he got protection but he fairly conceded that marriage of the deceased was performed with the daughter of the applicant in the year 2014 i.e. about 9 years before. 15. He further submitted that after about three months from the date of incident IO recorded the statements of some other eye- witnesses and in fact, they were not the eye-witnesses and informant is the only eye-witness in the case and if on the basis of statements of such witnesses five persons were exonerated by the IO then also applicant cannot be benefited. 16. He further submitted that considering the motive, enmity and the fact that informant of the present case was the eye-witness, applicant should not be released on bail. 17. I have heard learned counsel for the parties and perused the record of the case. 18. From the autopsy report, it reflects that deceased was brutally murdered and informant claimed himself to be an eye-witness and he nominated applicant along with seven others and 3-4 unknown persons in the FIR but as per the prosecution, incident is said to have taken place on 08.12.2022 at about 04:30 p.m. in the evening and FIR was lodged on 09.12.2022 at about 14:18 hours i.e. after about 22 hours and in the FIR it is specifically narrated by the informant that after committing murder, applicant and his associates threw his dead body near the house of one Munnu Sonkar in a sack but in spite of that he after the incident neither informed about the incident in his village nor to his family members nor even to police, therefore, argument advanced by learned counsel for the applicant that in fact informant is not an eye-witness cannot be completely disbelieved at this stage. 19. Further, even as per the prosecution, enmity between both the sides is admitted and as per the learned counsel for the informant, informant was the only eye-witness of the incident. Further, from the record, it reflects that IO recorded the statements of six alleged eye-witnesses and they stated that co-accused Upendra Singh, Krishnapal Singh, Deepu Singh, Susheel Singh and Ankit did not participate in the incident however, all these witnesses stated that applicant participated in the incident but statements of all these witnesses were recorded after three months. 20. Further, from paragraph no. 41 of the bail application, it appears that deceased was having criminal history of as many as 11 cases and this fact has not been either denied by learned counsel for the informant or learned AGA, therefore, second argument advanced by learned counsel for the applicant that due to his criminal history, deceased was murdered by somebody else, can also not be brushed aside altogether at this stage. 21. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail. 22. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 23. Let the applicant- Mahendra Singh be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity. 24. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant. 25. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 11.7.2023 KK Patel Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad