Sita Ram Yadav vs State Of U.P. And Another
2021 Latest Caselaw 8091 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 74
 

 
Case :- CRIMINAL APPEAL No. - 5268 of 2019
 
Appellant :- Sita Ram Yadav
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Shri Prakash Dwivedi, Prem Prakash, Nikhil Shukla, Sumit Kumar Srivastava
 
Counsel for Respondent :- G.A., Yatharth Srivastava
 

 
Hon'ble Pradeep Kumar Srivastava,J.

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.

Counter and rejoinder affidavits have been filed which are taken on record.

Notice sent to respondent no. 2 has been served personally but none has appeared on behalf of respondent no. 2.

This criminal appeal has been filed by the appellant Sita Ram Yadav with a prayer to set aside the judgment and order dated 02.08.2019, passed by Special Judge SC/ST Act, Mirzapur rejecting the bail application of the accused-appellant, in Case Crime No. 249 of 2018, under Sections 302, 201 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Vindhyachal, District Mirzapur.

Learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The appellant has committed no offence and on the pointing out of the appellant and other accused sickle which was used in the commission of the offence was recovered from an open place. It is submitted that the said recovery is totally manipulated. It has further been submitted that there was no dispute with regards to money and false story has been prepared. There is no direct evidence nor there is any eye witness of the incident. In the Statement of the witnesses, there are material contradictions. There is absence of motive and name of the appellant has come in the confessional statement made before the police. Submission is that the appellant is not named in the first information report. He has no previous criminal history. It has been submitted by the learned counsel for the appellant that the co-accused Gopal Bind had also filed appeal against the rejection of bail application and the appeal was allowed by the coordinate Bench, vide order dated 26.03.2019 annexed at page 66 of the present appeal. The offence under the SC/ST Act has been added during the course of investigation, whereas no such offence was constituted nor any offence was made out against the appellant. Submission is that without considering the relevant circumstances, the learned Special Judge has rejected the bail application. The impugned order suffers from illegality and the same is liable to be set aside. Submission is that the accused-appellant is prepared to furnish the surety and bond. The learned court below has illegally rejected the bail application of the appellant, hence, the impugned order is liable to be set aside and the appellant is entitled to be released on bail.

Learned A.G.A. has vehemently opposed the the prayer and has submitted that the impugned order has been passed by the learned court below after considering all the relevant facts and there is no illegality in the impugned order.

From perusal of the record it is clear that the appellant is not named in the first information report, his name come in light during the course of investigation and except the confessions statement made by the appellant to the police there is no evidence against him. The recovery of weapon used in the commission of the offence is manipulated and the recovered weapon could not connected with the alleged offence. Merely on the basis of suspicion, the appellant has been arrested.

The record also shows that certain circumstances have been shown against the appellant and one of the circumstance is with regards to the dues of Rs. 50,000/- which was to be repaid by the appellant. That circumstance is also based on mere speculation and to substantiate the same, there is no evidence on record. It has been also submitted that witnesses examined as PW-1 Chintamani, PW-2 Kalloo and PW-3 Mahendra had given statements with regards to certain circumstances but certain chains are missing on the basis of which it cannot be concluded that the appellant must have committed the offence. The offence which has been recorded during trial is yet to be examined by the learned trial court and thereafter the trial court is expected to arrive at conclusion. It is not necessary to give any finding as to the credibility of the evidence or with regards to the circumstantial evidence, which has been sought to be proved their testimony. What importance will be given to their testimony towards the establishment of those circumstances is within the domain of the trial court and a final finding is not necessary at this stage. The facts remain that the accused-appellant is not named in the first information report and only on the basis of suspicion his name is surfaced during investigation. If it is assumed that recovery of the weapon was made on the basis of confessional statement, it is still within the domain of the trial court to look what importance this circumstance has to be given and whether that recovery is credible or manipulated. The appellant is in jail since 17.09.2018 and all the important fact witnesses have already examined during trial and there is no possibility that the appellant may be influenced the evidence.

From perusal of the impugned order, it is clear that the learned trial court has also concluded that the case is based on circumstantial evidence and all those circumstances which have been taken against the appellant, were also available with regards to the co-accused Gopal Bind whose appeal has already been allowed. The learned trial court appears to have committed illegality as it is not appreciated that there is no direct evidence in the case and the first information report was also against unknown persons. It is simply on speculation that the appellant might have been involved in the commission of the offence but there is not concrete evidence nor any concrete reason to put forward in the bail rejection order.

Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties, I find that the learned court below has erred in rejected the bail application of the appellant, more particularly in view of the fact that the co-accused who are similarly situated has been released on bail by the order of the coordinate Bench of this Court. Hence, the impugned order suffers from infirmity and illegality and the same is liable to be set aside and the appeal is liable to be allowed.

Accordingly, the appeal is allowed and the impugned order dated 02.08.2019, passed by Special Judge SC/ST Act, Mirzapur rejecting the bail application of the accused-appellant, in Case Crime No. 249 of 2018, under Sections 302, 201 I.P.C. and Section 3(2)(5) SC/ST Act, Police Station Vindhyachal, District Mirzapur, is hereby set aside.

Let the appellant namely Sita Ram Yadav is released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that appellant is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

(ii) The appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

(iii) The appellant will not indulge in any unlawful activities.

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 appellant to prison.

Order Date :- 16.7.2021

sailesh