Newal Kumar vs State Of U.P.
2022 Latest Caselaw 9791 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9419 of 2020
 

 
Applicant :- Newal Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajiv Raman Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Shri Rajiv Raman Srivastava, the learned counsel for the applicant, Shri Ajay Kumar Singh Tomar, learned A.G.A. for the State and perused the record.

The applicant, Newal Kumar, has moved the present bail application seeking bail in Case Crime No. 435 of 2019, under Sections 302 ad 201 IPC, Police Station Maholi, District Sitapur.

As per the version of first information report, the father of applicant aged about 56 years was slept in the night of 23.10.2019, but on 24.10.2019 when the applicant woke up, his father was not present in his bed and then the applicant and his brother in law started searching of his father and found that the dead body of his father was lying in the plot of one Neebu Rathaur. Thereafter the applicant lodged an F.I.R. on the same day i.e 24.10.2019 at Police Station Maholi, District Sitapur which was registered as case crime no. 435 of 2019 under sections 302 and 201 IPC against unknown person. The post-mortem of the corpse of the father of applicant was conducted on 24.10.2019. According to the post-mortem report, the cause of death of the deceased is shock and hemorrhage due to ante mortem injuries which are of incised wound.

Learned counsel for the applicant further submits that the applicant is innocent and has falsely been implicated in the present case on the basis of suspicion. He further submits that the applicant has two brothers. The elder brother of the applicant already expired and his sister-in-law (bhabhi) is living with him alongwith his father in different portion of the same house. The relation between the applicant's father (deceased) and applicant was cordial except some minor dispute.

Learned counsel for the applicant further submits that the investigating officer started investigation of the case and has written that some villagers have orally told him that the deceased has no enmity but his son (applicant) is not good person and used to drink liquor regularly and also play gambling, therefore, on the suspicion created by the villagers and police Mukhbir Khas (informer), the local police without any evidence to show the involvement of the applicant, arrested the applicant on 04.11.2019 and recorded his confessional statement under section 161 Cr.P.C.

Learned counsel for the applicant further submits that the recovery was also shown falsely by the police against the applicant. No such recovery was made from the possession of applicant or his pointing out. The entire recovery is Mala-fidly shown against the applicant. The police has falsely implicated the applicant in the present case without any direct evidence against him regarding involvement of the applicant in the murder of his father. It is a case of circumstantial evidence. There is no direct evidence or any independent eye witness who has seen the applicant committing murder of his father and only on the information given by the police Mukhbir Khas (informer) and by some of the villagers, the applicant has falsely been implicated in the present case.

Learned counsel for the applicant further submits that out of 24 witnesses, 7 witnesses have been examined and none of the witnesses has stated the direct involvement of the applicant in the murder of his father, even though, the sister-in-law (bhabhi) of the applicant has clearly stated in her statement recorded before the court below on 15.09.2021 that the applicant is not habitual drinker of liquor or involved in the gambling nor has murdered his father. She further stated that she does not know who killed her father-in-law as she lived in another house.

Learned counsel for the applicant further submits that none of the other witnesses have supported the prosecution case or made any direct evidence against the applicant.

Learned counsel for the applicant further submits that the applicant is in jail since 05.11.2019 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 05.11.2019 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned AGA has opposed the prayer for bail but did not dispute the fact that the allegation against the applicant was levelled by some villagers and on the information given by the police Mukhbir Khas (Informer), however he did not dispute the fact as argued by the learned counsel for the applicant.

After perusing the record in the light of the submissions made at the Bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, considering the fact that it is a case of circumstantial evidence and the fact that the evidence against the applicant is one of extra judicial confession. There is no independent eye witness to support the prosecution case. None of the witnesses who have been examined before the court below have supported the prosecution case and made any direct allegation against the applicant regarding his involvement in the murder of his father and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh(supra) and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

The prayer for bail is granted. The application is allowed.

Let the applicant, Newal Kumar, involved in Case Crime No. 435 of 2019, under Sections 302 ad 201 IPC, Police Station Maholi, District Sitapur. be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(5) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

(6) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(8) The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 10.8.2022

GSY