High Court
Case Details
Neutral Citation No. - 2023:AHC:124090 Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52878 of 2022 Applicant :- Narendra Kumar Alias Guddu Bhartiya Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Kumar Counsel for Opposite Party :- G.A. Hon'ble Vikram D. Chauhan,J. 1. Learned A.G.A. for the State submits that instructions have been received and he has no objection in case the bail application is heard on merits.
Legal Reasoning
2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 3. It is submitted by learned counsel for the applicant that the First Information Report was lodged under Sections 302 and 120B I.P.C. against one Sweta Singh and one unknown person with the allegation that on 12.2.2021, at about 10:00 p.m., Sweta Yadav went along with the deceased to the Neemsarai Gyasuddin Ground in a car where the deceased was physically assaulted by unknown person and as a result of the same the deceased has sustained injuries. As per the informant, the accused, Sweta Yadav, had informed on phone about the aforesaid incident and thereafter the deceased was taken to the hospital where he died. As per the informant, the allegation was on Sweta Yadav with regard to committing of murder of the deceased, who is son of the informant and was working in the military. It is submitted that subsequently the accused, Sweta Yadav, was brought for medical examination, however, she had refused medical examination and has stated that she had suffered no injuries nor any assault was made on her. Subsequently during investigation no evidence was found against accused, Sweta Yadav. However, on the statement of one Sudeep Singh, who is brother of the deceased, has stated that he went to the place of occurrence after lodging of the First Information Report and has gathered information that applicant along with the co-accused persons have physically assaulted. It is further submitted that witness, Abhishek Kumar Singh, who is also the brother of the deceased, has also stated that he went to the place of occurrence and on enquiry he has found that the applicant along with the co-accused persons were involved in the alleged crime. Learned counsel for the applicant further submits that subsequently the statement under Sections 161 and 164 Cr.P.C. has been recorded of Sweta Yadav who has stated that she had subjected to rape by seven persons, however, she is not aware of the name of the deceased and the aforesaid accused persons. Learned counsel for the applicant while referring to paragraph no. 15 of the affidavit submits that no test identification parade was made by the Investigating Officer and it is not known as to how the Investigating Officer has come to the conclusion that the applicant along with the co-accused were the perpetrator of the crime. It is further submitted that there is no criminal history of the applicant, however, one case under Gangster Act has been lodged against the applicant after occurrence of the present incident. The primary submission of learned counsel for the applicant is that there is no evidence linking the applicant with the alleged crime. The only evidence that has surfaced against the applicant are the statements of two witnesses who are not the eye witnesses of the alleged incident and who have gathered information about the crime from some other persons. The statement of other persons have not been recorded during investigation. Applicant is languishing in jail since 16.02.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial. 4. Learned A.G.A. for the State submits that the deceased was the military personnel and he went along with Sweta Yadav to the ground where he was physically assaulted by seven persons. Two witnesses, Sudeep Singh and Abhishek Kumar Singh have disclosed the name of the assailants which includes the applicant. 5. On a pointed query being made to learned A.G.A. for the State as to whether any test identification parade is carried out to identify the witnesses, learned A.G.A. for the State does not dispute the fact that no test identification parade has been carried out. 6. It is to be seen that on mere suspicion a person cannot be prosecuted. The two witnesses who have have stated the name of the applicant in the alleged crime namely Sudeep Singh and Abhishek Kumar Singh are the brother of the deceased and they are not the eye witnesses of the alleged incident. On mere suspicion the applicant cannot be prosecuted. Applicant even not named in the First Information Report. No test identification parade has been made. 7. Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. 8. Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked." 9. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail. 10. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent. 11. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant. 12. No material, facts or circumstances has been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence. 13. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State. 14. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 15. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of 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. 16. Let the applicant-Narendra Kumar Alias Guddu Bhartiya involved in Case Crime No. 134 of 2021, under Sections 147, 148, 302, 34, 376-D I.P.C., Police Station Dhoomanganj, District Prayagraj/Allahabad 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 the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. 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. v. 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. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing. 17. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 5.6.2023 VMA Digitally signed by :- VISHWA MOHAN ARORA High Court of Judicature at Allahabad