Birendra vs State Of U.P.
2022 Latest Caselaw 4698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3493 of 2022
 

 
Applicant :- Birendra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Prashant Ji Pandey,Garun Pal Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Garun Pal Singh, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of the applicant Birendra under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 83 of 2021 for offence punishable under Sections 147, 149, 302, 201 of the Indian Penal Code registered at Police Station Mursan District Hathras during pendency of the trial, after rejecting the bail application of the applicant by the Special Judge (ST/ST) Act, Hathras vide order dated 09.12.2021.

Brief facts of the case are that the First Information Report dated 02.07.2021 has been lodged by the brother of the deceased against the applicant and three named and one unknown person under Sections 302 and 201 I.P.C. stating therein that the brother of the first informant had gone to Hathras on 20.06.2021 but he did not return from there. Extensive search was made to find out him but all effort went in vain. Therefore, in this regard, a missing report has been lodged on 22.06.2021 by the brother of the deceased at the police station and on the said report, investigated the matter and he came to know that all the named persons including the applicant murdered his brother and his dead body had been hidden anywhere for erasing the evidence.

Before lodging of the F.I.R., one missing report dated 23.06.2021 was endorsed at G.D. Rapat dated 23.06.2021, time 12:34, the present F.I.R. has been lodged on 02.07.2021. The bones of skull has been recovered on the pointing out of co-accused Hemant @ Hemu on 03.07.2021. Inquest report was prepared on 03.07.2022 at 4:00 P.M. and the post mortem report of bones of skull was conducted on 04.07.2021 at 1:30 P..M., as per post mortem report, skeleton present only soft tissue and decomposed and missing skeleton skull from and Ribs one scapula partial both bones of left firearm, pelvic bone, both forearm, both tibia and none of left foot partial upper jaw contain 8 teeth, lower jaw contain 6 teeth and 2 teeth are present for D.N.A., cause of death could not be ascertained. Time of death is 18 days prior to the post mortem report. After recording the statements of prosecution witnesses, charge sheet has been filed against the applicant and four named persons on 29.09.2021. The applicant was arrested on 03.07.2021.

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 F.I.R has been lodged on basis of suspicion. It is further submitted that skeleton ( bones of skull) has been recovered on the pointing out of Hemant @ Hemu on 03.07.2021. It is further submitted that missing report was lodged after two days of missing of brother of the first informant and First Information Report was lodged 12 days of the missing report. It is further submitted that except in the confessional statement of co-Hemant @ Hemu, no other evidence has been collected during the investigation. It is further submitted that no incriminating article was recovered from the possession of the applicant or on his pointing out.

It is further submitted that applicant has history of six criminal cases which are as cases as being cases, (1) crime No. 171 of 2020 under Sections, 392, 411 I.P.C. (2) Case Crime No. 190 of 2020 under Section 307 I.P.C. (3) Case Crime No. 192 of 2020 under Section 3/25 Arms Act. (4) Case Crime No. 194 of 2020 under Sections 411 414 I.P.C. (5). Case Crime No . 254 of 2020 under Sections 2/3 U.P. Gangster Act, all the five criminal cases have been registered at Hasayan District Hathras. (6) Case crime No. 468 of 2015 under Section 304 I.P.C. registered at Sikandrarau, District Hathras in all the cases, the applicant has been granted bail by the court below, copies whereof has been collectively filed as Annxure No. SA-1 to the supplementary affidavit. It is further submitted that co-accused Hemant @ Hemu, Shailesh Kumar, Adnan and Virendra on the identical role, have been granted bail by the coordinate Benches of this Court in Criminal Misc. Bail Application Nos. 54,023 of 2021, 47346 of 2021, 38829 of 2021, 7322 of 2022 vide orders dated 07.01.2022, 10.11.2021, 16.12.2021 and 11.04.2022 respectively. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently 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 FIR 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) missing report has been lodged after two days on 23.06.2022;

(b) F.I.R. has been lodged after 12 days of the alleged incident on 02.07.2021;

(c) except in the confessional statement of co- Hemant @ Hemu, no other evidence has been collected during the investigation against the applicant;

(d) no incriminating article was recovered from the possession of the applicant or on his pointing out;

(e). co-accused Hemant @ Hemu, Shailesh Kumar, Adnan and Virendra on the identical role, have been granted bail by the coordinate Benches of this Court in Criminal Misc. Bail Application Nos. 54,023 of 2021, 47346 of 2021, 38829 of 2021, 7322 of 2022 vide orders dated 07.01.2022, 10.11.2021, 16.12.2021 and 11.04.2022 respectively.

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 applicant, Birendra 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 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/endeavour 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 alongwith 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 :- 31.5.2022

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