High Court
Case Details
Court No. - 69 Neutral Citation No. - 2023:AHC:143685 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31552 of 2023 Applicant :- Rajesh @ Chhotu Opposite Party :- State of U.P. Counsel for Applicant :- Prashant Kumar Singh,Deepika Tiwari Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J. 1. List revised.
Legal Reasoning
2. Heard Sri Prashant Kumar Singh, learned counsel for the applicant, Sri Ajay Singh, learned counsel for the State and perused the material on record. 3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Rajesh @ Chhotu, seeking enlargement on bail during trial in connection with Case Crime No.559 of 2022 u/s 302, 201, 34 IPC, registered at Police Station Bidhnu, District Kanpur Nagar. 4. The FIR of the present case was lodged on 2.12.2022 by Janardan Singh, the Village Pradhan against unknown person alleging therein that on 2.12.2022 while walking he found a dead- body of unknown lady lying in the bushes of roadside in village Jadaupur. The dead-body is having a scarf in it's neck and blood is coming out from the mouth. It appears that someone has murdered her and thrown the dead-body. 5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is not named in the FIR. The present case is a case of circumstantial evidence. It is argued that there is no eye-witness to the alleged murder. It is argued that subsequently on an information of police informer on 4.12.2022 Prem Kesarwani and applicant have been arrested and from the possession of the applicant one country-made pistol of 315 bore is said to have been recovered. It is argued that there is no independent witness to the said recovery. The implication of the applicant is based on suspicion only. It is argued that there is no credible evidence against the applicant. It is argued that co-accused Sunny Gautam and Ajai Gautam have been granted bail by coordinate Benches of this Court vide orders dated 23.5.2023 and 11.7.2023 passed in Criminal Misc. Bail Application Nos.19279 of 2023 and 26130 of 2023, copy of the said orders has been produced by learned counsel for the applicant which are taken on record. It is argued that so far as alleged recovery of weapon is concerned, there is no corroboration of the use of the same till date. It is argued that charge sheet in the matter has been submitted against the applicant and four other accused persons on which trial court has taken cognizance vide order dated 1.3.2023 and as such there are no chances of the applicant tempering with the evidence. It is argued that the applicant is shown to be employee of co-accused Prem Kesarwani. The links in the chain of circumstances are thoroughly incomplete. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit. The applicant is in jail since 5.12.2022. 6. Per contra learned counsel for the State opposed the prayer for bail and argued that although the applicant is not named in the FIR but since he is employee of co-accused Pream Kesarwani and there is recovery of a country-made pistol on his pointing out. It is argued that the deceased was found to have received gun-shot injury, the applicant is involved in the present case. It is argued that co-accused Prem Kesarwani has been denied bail by a coordinate Bench of this Court vide order dated 6.4.2023 passed in Criminal Misc. Bail Application No.15488 of 2023, copy of the said order supplied by learned counsel for the State is taken on record. 7. After hearing the counsel for the parties and perusing the record, it is evident that the applicant is not named in the FIR. The present case is a case of circumstantial evidence. There is no eye-witness to the alleged incident. So far as alleged recovery of a country- made pistol from the possession of the applicant is concerned, there is no corroboration of use of the same till date. The applicant was arrested on the information of police informer after which confessional statement is alleged to have been recorded in which he stated that he is employee of co-accused Prem Kesarwani. Charge sheet has been submitted in the matter. Co-accused persons have been granted bail by coordinate Benches of this Court. The case of the applicant is distinguishable with that of co-accused Prem Kesarwani. 8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. 9. Let the applicant-Rajesh @ Chhotu, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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. (v) 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 11. The bail application is allowed. Order Date :- 19.7.2023 Gaurav Kuls (Samit Gopal, J.) Digitally signed by :- GAURAV KULSHRESTHA High Court of Judicature at Allahabad