Allahabad High Court
Yogesh vs State Of U.P. on 23 July, 2021
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
Judgment reserved on 19.7.2021.
Delivered on 23.7.2021.
Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28553 of 2020
Applicant :- Yogesh
Opposite Party :- State of U.P.
Counsel for Applicant :- Vinay Kumar Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Vinay Kumar Tripathi, learned counsel for the applicant and Rajesh Vishwakarma, learned A.G.A. Perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.702 of 2019, under Sections 302 and 364 I.P.C., Police Station-Highway, District-Mathura after rejection of his Bail Application vide order dated 17.1.2020, passed by learned Additional Sessions Judge, Court No.12, Mathura.
3. Jai Prakash, informant, father of the deceased Yogesh @ Krishna aged about 6 years lodged a F.I.R. against unknown persons under the above referred sections alleging that on 8.8.2019 at about 12.30 noon some unknown persons abducted his six years old son Yogesh when he was playing outside his house. At about 2.30 noon on the same day, he received information that dead body of his son was lying outside the boundary wall of Jai Guru Deo High School. It was alleged that someone has abducted and killed his son. Om Prakash and Rajendra saw the boy playing outside his house.
4. Learned counsel for the applicant submits that it is opined in the post mortem report that the death of the boy was due to 'Asphyxia' as a result of 'Throttling'. There was a delay of 7 hours in lodging the F.I.R. During investigation, statement of one Chandra Pal who was running a hotel at Highway, a relative of the complainant side was recorded, that he saw the applicant along with the boy while applicant was going towards the road from the boundary holding the boy. On asking, he told that the boy had fallen down from the wall and he was going to Doctor for his treatment. It was also alleged that the CCTV footage is not sufficient to implicate the applicant with the crime because it is not clear as to whether the applicant was the person following the boy. The entire evidence is in the nature of circumstantial evidence. There is no motive for the applicant to commit such crime. The applicant is an innocent person, he has no other reported criminal antecedent and he is languishing in jail since 10.8.2019, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Learned A.G.A. has vehemently opposed the bail application and submitted that there are cogent evidence against the applicant one in the nature of statement of eye witness which was promptly recorded on the date of occurrence and secondly the CCTV footage wherein the applicant was identified following the deceased. There is also a recovery of half pant and ash from the house of the applicant, therefore, the applicant is not entitled for bail.
6 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
7. In the present case, a young boy of six years was murdered by 'Throttling'. The delay of 7 hours in lodging the F.I.R. by the father of the deceased cannot be considered as a huge delay, considering that his young son was murdered. The eye witness Chandra Pal has not only stated that he saw the applicant along with the boy, but also specifically stated that he confronted the applicant who stated that he is rushing to Doctor as the boy is unconscious. CCTV footage also prima-facie indicates the complicity of the applicant in the crime.
8. Considering that there are very serious charges against the applicant who is involved in the abduction and murder of a young boy of six years, no case of bail is made out. Accordingly, this bail application is rejected.
Order Date :-23.7.2021
SB
