Bhagwan Singh vs State Of U.P. And Another
2022 Latest Caselaw 14858 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6233 of 2022
 

 
Applicant :- Bhagwan Singh
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Gaurav Kakkar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Manish Mathur,J.

1. As per office report dated 07.06.2022, notices have been served upon informant however no one has put in appearance on their behalf.

1A. Heard learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This first bail application has been filed with regard to Case Crime No.146 of 2021, under Sections 363, 366, 376, 302, 201, 120-B IPC and Section 3/4 Protection of Children From Sexual Offences Act, registered at Police Station Biharigarh, District Saharanpur.

3. FIR which was initially lodged under Section 363 IPC against unknown person indicates that the informant's daughter was missing since the intervening night on 17-18.08.2021. Subsequently, her dead body was recovered and another FIR was lodged again against unknown person under Sections 302 and 201 IPC. The body was later on identified by the informant and other family members.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him and he is named neither in the FIR nor even in the subsequent statement recorded under section 161 Cr.P.C. It is submitted that the applicant was taken into custody allegedly on the basis of information received from a police informer. Recovery of clothes and mobile also are alleged to have been made at the instance of applicant but it is submitted that the alleged recovery even otherwise was from an open area easily accessible to general public and was at the joint pointing out of the applicant alongwith co-accused Ram Singh. It is submitted that as per the postmortem report, there are no external injuries on the private part of deceased and cause of death has been indicated as asphyxia as a result of ante-mortem strangulation. It is submitted that the prosecution version also indicates alleged recovery of a knife at the instance of applicant, which however would be irrelevant in view of the cause of death ascertained. It is further submitted that after more than a month of the discovery of dead body, statements of other witnesses were also recorded allegedly implicating the applicant in the crime alleged. However, it is submitted that none of the statements indicate any complicity of the applicant in the crime alleged nor is there even last seen evidence pertaining to the applicant. It is submitted that even otherwise, all the statements recorded are based on hearsay evidence and point out merely to the applicant being previously known to the deceased. As such, it is submitted that at this stage, there is neither any direct nor even circumstantial evidence against the applicant who is in custody since 30.08.2021 with evidence not yet having commenced.

5. Learned Additional Government Advocate appearing on behalf of State has opposed the bail application with the submission that the applicant has been taken into custody on the basis of information derived from the police informer and the applicant has also confessed to his crime. It has further been averred that the applicant has been taken into custody and subsequently articles belonging to the deceased were recovered at the joint instance of applicant and co-accused. As such, it is submitted that the chain of circumstantial evidence pertaining to the applicant is complete.

6. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

7. Considering the submission advanced by learned counsel for parties and upon perusal of material available on record, it appears that the applicant was named neither in the FIR nor even in the statement recorded under Section 161 Cr.P.C. of the informant. He appears to have been taken into custody on the basis of information provided by the police informer. There seems to be recovery of some clothing articles at the joint instance of applicant and co-accused but the same appears to have been made after more than 12 days of the body being found and that too from an open area readily accessible to general public. The alleged confession of the applicant clearly falls within the definition of extra judicial confession and its evidentiary value is required to be corroborated in trial with evidence. The alleged recovery of knife would probably have no meaning since cause of death has been shown to be asphyxia as a result of ante-mortem strangulation. At this stage, there does not appear to be any direct or even circumstantial evidence available against the applicant who is in jail since 30.08.2021 with evidence not yet having commenced. The applicant does not have any previous criminal history. The alleged CDR indicating presence of the applicant near the place where the deceased's body was found is also subject to corroboration particularly with regard to the time when the alleged incident is said to have taken place.

8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

9. Accordingly bail application is allowed.

10. Let applicant, Bhagwan Singh, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial 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.

(iv) 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, 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 against him in accordance with law.

Order Date :- 21.10.2022

Subodh/-