High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34511 of 2021 Applicant :- Subhash Opposite Party :- State of U.P. Counsel for Applicant :- Amul Kumar Tyagi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Amul Kumar Tyagi, the learned counsel for applicant and the learned AGA for State. 2. This application for bail has been filed by applicant, Subhash seeking his enlargement on bail in Case Crime No.251 of 2016, under Sections 302, 201 IPC, Police Station Badaut, District Baghpat, during pendency of trial. 3. Perused the record. 4. Record shows that in respect of an incident which is alleged
Facts
to have occurred on 16.03.2016 a delayed FIR dated 23.03.2016 was lodged by first informant, Sri Sanjay Kumar and was registered as Case Crime No.0251 of 2016, under Section 364 IPC, Police Station Badaut, District Baghpat. In the aforesaid FIR two persons namely, Sanju and Subhash have been nominated as named accused. 5. The gravamen of the allegations made in the aforesaid FIR is to the effect that named accused have kidnapped Balwan, brother of the first informant on 16.03.2016. 6. After registration of aforementioned FIR, investigating officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII CrPC. Applicant, Subhash was arrested on 23.03.2016 whereas co-accused Sanju was arrested on 31.03.2016. On the pointing of present applicant i.e. Subhash the dead body of the deceased was recovered on 23.03.2016 itself. The weapon of assault was recovered on 05.04.2016 on the pointing of co-accused, Sanju. 7. Thereafter the inquest (panchayatnama) of the body of deceased was conducted on 23.03.2016 itself. In the opinion of panch witnesses the nature of death of the deceased was homicidal. Thereafter postmortem of body of the deceased was conducted on 24.03.2016. In the opinion of the autopsy surgeon, cause of death of the deceased was shock and haemorrhage as a result of antemortem injuries. The autopsy surgeon found following antemortem injuries on the body of the deceased:- "1. Incised wound 10cm x 6cm over (L) side scull below (L) ear 6cm below. 2. Abrasion 3cm x 2cm (R) side chest below (R) nipple." 8. During course of investigation, investigating officer examined various witnesses and collected the other material
Legal Reasoning
which are prima facie adverse to the applicant. On the basis of above investigating officer submitted the charge sheet dated 17.05.2016 upon which cognizance was taken by court concerned. As the offence complained of is triable by the Court of Sessions, the court concerned committed the case to the Court of Sessions. Resultantly Sessions Trial came to be registered in the Court of Sessions as Sessions Trial No.232 of 2016 (State Vs. Sanju and others). 9. At the very outset the learned counsel for applicant contends that applicant is innocent. Applicant has been falsely implicated in aforementioned case crime number. Allegations made in the FIR are false and concocted. As such, applicant is being falsely prosecuted in aforementioned case crime number. It is then contended that named accused, Sanju has already been enlarged on bail by this Court vide order dated 19.07.2019 passed in Criminal Misc. Bail Application No.28267 of 2017. For ready reference the same is reproduced herein under:- "Heard learned counsel for the applicant and Sri J. K. Upadhya, learned AGA appearing for the State. This bail application moved on behalf of applicant praying to enlarge the applicant on bail in Case Crime No.251 of 2016, under Sections 302, 201, 404, IPC, Police Station Baraut, District Baghpat. This is the second bail application moved on behalf of the applicant. The first bail applications was rejected by this Court vide order dated 13.01.2017. The contention of the counsel for the applicant is that subsequent to the rejection of first bail application of the applicant, the P.W.-1 namely Sanjay has been examined, the relevant documents has been annexed on page no. 25 of the second bail application, which shows that as far as the Sanjay is concerned he has categorically stated that the body was recovered at the instance of co-accused namely Subhash and thus his case stands on a different footing. Reliance has also been placed on the statement of Vickey, who has been examined as P.W.-2 and he too stated the same thing. The further contention of the counsel for the applicant is that the case is of circumstances evidence, there is no direct evidence which may show the participation of the applicant in the alleged crime. The further contention is that the applicant is languishing in jail since 31.03.2016 with no previous criminal history. Learned AGA appearing for the State opposed the prayer for bail, but could not dispute the aforesaid facts as argued by the learned counsel for the applicant. In view of the aforesaid facts and circumstances and the fact that the applicant is languishing in jail since 31.03.2016, with no previous criminal history, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view of this Court will not in any manner adversely affect the case of the prosecution. The prayer for bail is granted. The application is allowed. Let the applicant Sanju involved in the aforesaid case crime number be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions: i) The applicant shall not tamper with the prosecution evidence. ii) The applicant shall not threaten or harass the prosecution witnesses. iii) The applicant shall appear on the date fixed by the trial court. iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission, of which applicant is suspected. v) The applicant shall not directly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade the applicant from disclosing such facts to the Court or to any police officer or tamper with the evidence. In case of default of any of the conditions enumerated above, the learned counsel for the complainant is free to move an application for cancellation of bail before this Court. However, it is directed that the aforesaid case crime number pending before the concerned court below be decided expeditiously, as early as possible in accordance with Section 309 Cr.P.C. and in view of principle as has been laid down in the recent judgment of Hon'ble Apex Court in the case of Vinod Kumar v. State of Punjab reported in 2015 (3) SCC 220 and Hussain and Another v. Union of India; 2017 (5) SCC 702, if there is no legal impediment. It is made clear that in case the witnesses are not appearing, the concerned court is directed to initiate necessary coercive measure for ensuring their presence. The case of the co-accused Subhash is distinguishable from the case of present applicant, as the body was recovered at his instance." 10. Learned counsel for applicant contends that the present case is a case of circumstantial evidence. However, upto this stage prosecution has failed to establish a complete chain of events, the circumstances relied upon by the prosecution are not in proximity to time and manner of occurrence and even if proved shall not point at the guilt of the accused. No motive can be attached to the applicant to commit the crime in question. It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 23.03.2016. As such, he has undergone more than five years of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. 11. Per contra, the learned AGA has opposed this application for bail. He contends that the dead body of the deceased was recovered on the pointing of present applicant. Since present case is a case of circumstantial evidence aforesaid circumstance is an incriminating circumstance against the applicant and prima facie point at the guilt of the accused. It is then contended that case of co-accused, Sanju is clearly distinguishable for the reasons mentioned in the order dated 19.07.2019 itself. As such, applicant cannot claim parity with the co-accused, Sanju. It is lastly contended that upto this stage two witnesses namely, PW-1 and PW-2 have already been examined who have supported the prosecution story. On the aforesaid premise learned AGA contends that applicant does not deserve any sympathy of this Court. 12. Having heard learned counsel for applicant, learned AGA for State and upon consideration of evidence on record, this Court does not find any good ground to enlarge the applicant on bail. 13. Accordingly, present bail application is rejected. 14. However, court below is directed to proceed with the trial expeditiously without granting any unnecessary adjournment. Order Date :- 22.3.2022 Shahroz Digitally signed by SHAHROJ ALAM Date: 2022.04.02 14:52:41 IST Reason: Location: High Court of Judicature at Allahabad