High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36923 of 2022 Applicant :- Rakendra Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Mahendra Singh Counsel for Opposite Party :- G.A.,Santosh Kumar Tiwari Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Mahendra Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Santosh Kumar Tiwari, the learned counsel for first informant. This application for bail has been filed by applicant Rakendra Yadav seeking his enlargement on bail in Case Crime No. 655 of 2021, under Sections 302 IPC, P.S. Phase-2, District Gautam Budh Nagar, during the pendency of trial. Perused the record. Record shows that in respect of an incident, which is alleged to have occurred on 05.11.2021, a prompt F.I.R. dated 05.11.2021 was lodged by first informant Vipin and was registered as Case Crime No. 655 of 2021, under Sections 302 IPC, P.S. Phase-2, District Gautam Budh Nagar. In the aforesaid one unknown person has been arraigned as an accused. Gravamen of the allegations made in the F.I.R. is to the effect that named accused had gone to the park situate in Sector 88 for a morning walk. He discovered that a dead body was lying there. Accordingly, he informed the police on Dial 112. After lodging of aforementioned F.I.R., the inquest of the body of the deceased was conducted on the same day i.e. 5.11.2021 itself. In the opinion of Panch witnesses, the nature of death of deceased could not be characterized. However, the cause of death of the deceased was said to be ante mortem burn injury. Therefore, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:- 1. A ligature mark of 38 x 3 cm present all around neck below thyroid cartilage which is 6 cm below rt ear, 6 cm below left ear and 7 cm below chin. 2. L/W 8 x 3 cm x bone deep on front of forehead just above root of nose. 3. L/W 2 x 1 cm x bone deep on left side nose with # nosal bone. 4. L/W 3 x 2 cm through & through on mid upper lip. 5. Upper Jaw. In the opinion of Autopsy Surgeon, the cause of death of the deceased was asphyxia as a result of ante mortem strangulation. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr. P. C. He thereafter examined various witnesses including Bhawar Pal Singh, father of the deceased. Complicity of present applicant and Seema Yadav came to surface in the crime in question, as per the statement of aforesaid witnesses. Thereafter applicant and Seema Yadav were arrested. In the confessional statement of applicant, the name of another co-accused Anoop @ Pintu Yadav came to surface. Investigating Officer also obtained the C.D.R. report of mobile number of co-accused Seema Yadav and deceased. During course of investigation, Investigating Officer recovered the Adhar Card I.D. etc., of the deceased from the vehicle of the co-accused Pintu Yadav. On the basis of above and other material collected by Investigating Officer, which according to Investigating Officer is adverse to aforesaid accused, he came to the conclusion that complicity of aforementioned accused is established in the crime in question. He, accordingly, submitted charge sheet dated 19.12.2021, whereby aforementioned accused have been charge sheeted under Section 302, 120 B IPC. At the very outset, the learned counsel for applicant contends that charge sheeted co-accused Seema Yadav has already been enlarged on bail by this Court, vide order dated 13.7.2022. Same reads as under:- "Heard learned counsel for the applicant, learned A.G.A for the State and perused the record. It is submitted by learned counsel for the applicant that he is innocent and has been falsely implicated in the present case. Applicant is a lady and wife of deceased. She has committed no offence but on the basis of confessional statement of co-accused Rakendra Yadav who was in affair with the applicant she has been roped in this case with the help of Section 120-B IPC. There is a child of two years who is to be taken care off by this applicant. There is no evidence on record to indicate that this applicant has committed murder of her husband or took part in commission of incident with co-accused Rakendra Yadav. Nothing has been recovered at the instance of this applicant. There is no criminal history against the applicant. She is languishing in jail since 7.11.2021 and in case she is released on bail, she will not misuse the liberty of bail and will cooperate in trial. Learned AGA opposed the prayer for bail. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant Smt. Seema involved in Case Crime No. 655 of 2021, under Sections 302, 120-B I.P.C., P.S. Phase-2, District Gautam Buddh Nagar be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. 1. The applicant will not tamper with the evidence during the trial. 2. The applicant will not pressurize/ intimidate the prosecution witness. 3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. 4. The applicant shall not commit an offence similar to the offence of which she is accused, or suspected of the commission of which she is suspected. 5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to any police officer or tamper with the evidence. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court." Subsequently, another co-accused Anoop @ Pintu Yadav has been enlarged on bail by this Court, vide order dated 10.8.2022. For ready reference, same is also extracted herein under:- "Learned counsel appearing for the applicant has provided complete copy of the bail application, certifying it to be a true copy, to the learned AGA. If any fact or document has been suppressed on the part of the applicant, it will be open for the State /informant to move bail cancellation application. Heard Shri Sudeep Harkauli, learned counsel for the applicant, learned A.G.A for the State and perused the record. It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. No prima facie case is made out against the applicant. He was not named in the F.I.R.. Name of the applicant surfaced in the matter in the confessional statement of co- accused. There is no other evidence to connect the applicant with the present matter. It is a case of hatching conspiracy. Last seen evidence is also not sufficient to connect the applicant in this case. Referring to call details it is also submitted that same can also not be connected with the applicant. The applicant has no criminal history. He is languishing in jail since 7.11.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial. On the other hand, learned AGA opposed the prayer for bail. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, complicity of accused, scrutinizing the facts mentioned in the F.I.R., statement of witnesses recorded under Section 161 CrPC and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. Let the applicant Anoop @ Pintu Yadav involved in Case Crime No. 655 of 2021, under Sections 302, 120-B IPC, P.S. Phase-2, District - Gautam Budh Nagar be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. 1. The applicant will not tamper with the evidence during the trial. 2. The applicant will not pressurize/ intimidate the prosecution witness. 3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. 4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. 5. The applicant shall not directly or indirectly make any 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 to any police officer or tamper with the evidence. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court." On the aforesaid premise, the learned counsel for applicant submits that the case of present applicant is similar and identical to that of aforementioned co-accused. There is no such distinguishing feature on the basis of which the case of present applicant can be distinguished from aforementioned charge sheeted co-accused who have already been enlarged on bail so as to deny bail to applicant. Thus, on the basis of above and for the facts and reasons recorded in the bail orders of other charge sheeted co-accused, applicant is also liable to be enlarged on bail on the ground of parity. It is next contended that present case is a case of circumstantial evidence. However, the incriminating circumstances gathered by Investigating Officer against applicant during the course of investigation are not in proximity with time and manner of occurrence and therefore do not point at the guilt of accused applicant. It is lastly contended that the 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 07.11.2021. As such, he has undergone more than 1 year of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and Mr. Santosh Kumar Tiwari, the learned counsel for first informant have opposed the present application for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, they could not dislodged the factual/legal submissions urged by the learned counsel for applicant. Having heard the learned counsel for applicant, the learned A.G.A. for state, the learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that charge sheeted co-accused have already been enlarged on bail, case of the present applicant is not distinguishable from the charge sheeted accused, who have been enlarged on bail, but without expressing any opinion on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed. Let the applicant Rakendra Yadav, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties 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 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. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.. (iii) 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. (iv) 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. (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 applicant. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 19.11.2022 HSM Digitally signed by HARI SHANKER MISHRA Date: 2022.11.21 17:51:19 IST Reason: Location: High Court of Judicature at Allahabad