Tularam vs State Of U.P. And 3 Others
2022 Latest Caselaw 1989 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4707 of 2022
 

 
Applicant :- Tularam
 
Opposite Party :- State Of U.P. And 3 Others
 
Counsel for Applicant :- Satya Dheer Singh Jadaun
 
Counsel for Opposite Party :- G.A.,Ambreesh Kumar
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the first informant has filed counter affidavit and learned A.G.A. has filed affidavit of compliance today, which are taken on record.

In compliance of the order dated 22.04.2022, Sri Satya Prakash Singh, the then S.H.O., P.S. Ajitmal, District Auraiya, personally appeared in the court, hence, his personal presence is hereby exempted.

Heard Sri Satya Dheer Singh Jadaun, learned counsel for the applicant, Sri Ambreesh Kumar, learned counsel for the first informant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Tularam under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 497 of 2020 for offence punishable under Sections 302, 376 of the Indian Penal Code and Section 3/4 of Protection of Children from Sexual Offences Act, 2012, registered at Police Station- Ajitmal, District- Auraiya, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (POCSO Act), Auraiya vide order dated 23.12.2021.

Brief facts of the present case are that the first information report dated 26.10.2020 has been lodged against unknown persons by mother of the victim under Sections 376, 302 of I.P.C. and 3/4 of POCSO Act stating therein that on 26.10.2020 at about 04:00 PM. her minor daughter aged about 12 years had gone to the field to graze her goats, but when she did not return home in the evening, the first informant started searching for her and during the search, she was found bloodstained body of her daughter on the edge of the millet field of Brahma Devi. The clothes on the body of the victim were in a messy condition. A noose made up from the dupatta of the victim was found tied up on the neck of the body of the victim. Bleeding from nose and numerous other injuries were also seen on the body of the deceased.

After lodging of the first information report, the inquest proceedings of the deceased was conducted on 27.10.2020 at 08:30 A.M.; statement of the first informant and another daughter of the first informant was recorded on 26.10.2020; postmortem of the deceased was conducted on 27.10.2020 at 03:10 P.M. Cause of death is asphyxia due to throttling. As per postmortem report, three injuries were found on the person of the deceased contusion mark on front of neck, fingers mark, two linear abrasion. During the course of investigation, statement of Urmila, Aarti, second statement of the first informant and Sapna were recorded on 09.11.2020 and 15.11.2020 respectively. On 22.11.2020, the applicant and 12 other persons have agreed to give sample for DNA test. On 28.11.2020 DNA sample of the applicant and other 12 persons have been collected. On 04.11.2021, a report was submitted and during the course of investigation it was found that the DNA sample of the applicant and 12 other. On 08.10.2021 second statement of Urima, third statement of Kamla Devi, second statement of Sapna, Sadhana, Poonam and Kiran have been recorded.

After recording the statement of the prosecution witnesses, the Investigating Officer has submitted charge sheet on 05.12.2021 against the applicant and the applicant was arrested on 09.10.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that after about one year of the incident on 08.10.2021 second statements of Urmila, Kamla Devi, Sadhana and Sapna were recorded, wherein they stated that the applicant was seen after the incident riding a bicycle nearby, and other statements of prosecution witnesses wherein they stated that they have seen the applicant near the place of incident. As per prosecution records, during investigation two blood samples of the applicant have been collected, first blood sample was taken on 28.11.2020 and second blood sample was collected after the arrest of applicant. In both the DNA reports which are part of the investigation, DNA sample did not match with the samples collected at the time of postmortem of the victim. As per latest status of the investigation, it is found that there is no involvement of the applicant in the present incident and further investigation is pending.

He has next argued that the applicant has no previous criminal history and he is aged about 50 years and if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) The first information report has been lodged on 26.02.2020 against unknown persons after about 5 hours of the incident;

(b) The dead body of the victim was recovered after about two and a half hours of the incident;

(c) The applicant voluntarily gave his blood sample for DNA on 28.11.2020 but as per report dated 04.01.2021 DNA sample did not match with the samples collected at the time of postmortem of the victim;

(d) On 08.10.2021 after about one year, first time prosecution witnesses in their second statement stated about the complicity of the applicant and stated that they have seen the applicant near the place of the incident after the incident;

(e) After arrest of the applicant, second blood sample has also been collected, which also did not match the sample collected at the time of the postmortem;

(f) Further investigation of the present case is pending.;

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let the applicant, Tularam be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) 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.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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.

Order Date :- 5.5.2022

Ishan