High Court

Legal Reasoning

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52114 of 2022 Applicant :- Sunil Opposite Party :- State of U.P. Counsel for Applicant :- Balram Mishra,Abdul Majid,Amit Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J. Heard learned counsel for the applicant and learned Additional Government Advocate representing the State. By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 195 of 2022, under Sections 302/34, 201 IPC, police station Meerganj, district Bareilly, seeks enlargement on bail during the pendency of trial. It is pointed out by learned counsel for the applicant that on 22.5.2022, informant Mohit Kumar, son of the deceased, gave an application to the In-charge Inspector, police station Meerganj, district Bareilly mentioning therein that on 21.5.2022 at about 7.00 in the evening, his father had gone to his sister's house situated at village Siraudhi Angadpur. Since, his father was habitual of taking liquor, therefore, after consuming liquor, he fell down from his motorcycle bearing registration No. UP25 P-5659. On receiving the said information, when he reached the spot, he came to know that his father is no more. On the basis of the aforesaid information, inquest proceeding as well as post mortem examination on the body of the deceased was conducted on 22.5.2022. As per the post mortem examination, the cause of death was ante mortem head injury. Thereafter, the FIR was lodged by the informant on 27.5.2022 against Dr. Rajesh Gangwar reiterating the aforesaid facts and raising suspicion that since Dr. Rajesh Gangwar had borrowed an amount of Rs. 20,000/- from his father and he was insisting to refund the same with interest, therefore, his father was done to death. It is next submitted by the learned counsel for the applicant that informant in his statement under Section 161 Cr.P.C. has also narrated the same story as mentioned in the FIR. On the aforesaid facts, it is submitted that till recording the statement of the informant under Section 161 Cr.P.C, the name of the applicant was not in picture. It is pointed out that when investigating ofÏcer has recorded the statements of Sumendra and Nipendra, who are brothers of the deceased, they came up with different stand stating inter alia that there was illicit relation of Dr. Rajesh Gangwar with Kamlesh, daughter of the deceased and the same was being objected by the deceased and, therefore, they believe that Rajesh Gangwar, Sunil (applicant) and Om Prakash committed the murder of his brother Mahendra. Thereafter, in follow up action, police recovered bloodstained waist cloth (Angauchha) and hammer from the house of Kamlesh and she has also been made accused in this case. In the aforesaid background, on 31.5.2022, Dr. Rajesh Gangwar was apprehended by the police and he in his confessional statement has confessed his guilt and disclosed the modus operandi adopted by him along with the present applicant Sunil, Om Prakash and Kamlesh stating inter alia that he along with Sunil and Om Prakash followed the deceased and as soon as he reached Siraudhi Angadpur, he stopped the motorcycle and caught hold of the deceased and assaulted him on his head with a rod, due to which he became unconscious. Thereafter, he got the deceased sat on the pillion of motorcycle, which was being driven by Sunil (applicant) and he was sitting behind the deceased and after covering some distance he left the deceased and put the motorcycle on him. The investigating ofÏcer has also recorded the statement of Ashish, aged about 12 years, who is the grandson of deceased and son of Kamlesh, who stated inter alia that when the deceased had left his house, the accused persons namely Dr. Rajesh Gangwar, Sunil (applicant) and Om Prakash followed him. On the strength of the aforesaid facts, the main substratum of argument of learned counsel for the applicant is that the applicant is not named in the FIR. There is no recovery of any incriminating material from the possession of the applicant and that there is no eyewitness of the incident. It is further submitted that even in the confessional statement of Dr. Rajesh Gangwar, no role of assault on the deceased has been assigned to the present applicant Sunil, rather it is stated that the applicant was driving the motorcycle. It is also submitted that except the confessional statement of Dr. Rajesh Gangwar, there is no corroborative material against the applicant to connect him with the alleged crime. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 22.8.2022 and in case, he is released on bail, he will not misuse the liberty of bail and cooperate with the trial. Per contra, learned A.G.A. for the State opposed the prayer for bail of the applicant, but could not dispute the above factual aspect of the matter as argued on behalf of the applicant. Having heard learned counsel for the parties and examined the matter in its entirety, I find that initially when informant gave the application dated 22.5.2022 to the police, he had come up with a plea that his father had died due to accident as he was driving the motorcycle after consuming liquor, but later on during investigation, the fact of the case has been twisted on the statements of Sumendra and Nipendra that since co-accused Dr. Rajesh Gangwar was having illicit relation with Kamlesh, which was objected to by the deceased, they had suspicion that Dr. Rajesh Gangwar along with Sunil and Om Prakash have committed the murder of his brother, whereas there are also not eyewitnesses of the occurrence. Even in his confessional statement, Dr. Rajesh Gangwar has taken responsibility of causing head injury to the deceased on his shoulder.The case of the applicant is distinguishable from that of co- accused Rajesh Gangwar and Om Prakash. Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed. Let the applicant Sunil, 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: (i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. (ii) That 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 ofÏcer or tamper with the evidence. (iii) That after his release, the applicant shall not involve in any criminal activity. (iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant. In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant. Order Date :- 15.3.2023 Ishrat Digitally signed by :- MOHAMMAD ISHRAT High Court of Judicature at Allahabad