Allahabad High Court
Akash Tomar vs State Of U.P. on 20 March, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:50227 Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6466 of 2024 Applicant :- Akash Tomar Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Vikram Yadav Counsel for Opposite Party :- Abhishe Pandey,Akhilesh Kumar,G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Ajay Vikram Yadav, learned counsel for the applicant, Sri Akhilesh Kumar, learned counsel for the first informant and Sri Ajay Singh, learned AGA-I for the State and perused the material on record.
3. Office to trace out the vakalatnama of Sri Akhilesh Kumar, Advocate and place it on record and make a note in the order sheet.
4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Akash Tomar, seeking enlargement on bail during trial in connection with Case Crime No. 650 of 2023, under Sections 306, 448, 506 I.P.C., registered at Police Station Shikohabad, District Firozabad.
5. The present bail application was directed to be placed before Hon'ble The Chief Justice for nomination a Bench since co-accused Amar Singh Tomar was granted interim anticipatory bail by this Court. The office vide its report dated 19.03.2024 has placed the matter before this Court in compliance of the order dated 14.12.2023 of Hon'ble The Acting Chief Justice.
6. The FIR of the matter was lodged on 17.08.2023 under Sections 302, 448, 506 IPC by Seema Tomar against Amar Singh, Shubham Tomar, Himanshu Tomar and Shikha Tomar with the allegation that she has a guest house on railway road of which she is in possession since its construction. Her jeth Amar Singh Tomar had an evil eye on the said guest house and wanted to take possession of the same. Even previously on the basis of a forgery he tried to take possession of it. Aneeta Tomar her nand lives with her. Amar Singh got an agreement of sale executed by force and stated of murdering her brother. On 03.06.2023 her husband Vikram Singh Tomar was troubled mentally and an agreement to sell was executed. She has no other means of livelihood. She has three children. Her husband was quite disturbed and on 16.08.2023 at about 01:30 pm went to the guest house but did not return since late after which she sent her son to the guest house where he saw his father Vikram Tomar lying in an unconscious state on the floor. On information she with her nand went there and took her husband to the government hospital where he in a critical condition was taken to the trauma centre then from there he was referred to the S.N. Medial College, Agra but he died at about 3-4 am.
7. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is not named in the FIR. His name has surfaced in the present case after about two months in the statement of Girja Shankar. It is argued that the implication of the applicant in the present case is without any credible evidence. It is further argued that the investigation in the matter was concluded and a charge sheet has been submitted. It is argued that during investigation the Investigating Officer converted the case from the case under Sections 302, 448, 506 IPC into a case under Sections 306, 448, 506 IPC. It is argued that there is no direct evidence to connect the applicant in the present case. It is further argued that the deceased was not found to have received any bodily injury. The cause of death could not be ascertained and the viscera was preserved which after investigation was found to have contained aluminium phosphide poison. It is argued that co-accused Amar Singh Tomar has been granted interim anticipatory bail by this Court vide order dated 18.01.2024 passed in Crl. Misc. Anticipatory Bail Application No. 12346 of 2023 (Amar Singh Tomar Vs. State of U.P.), copy of the order is annexed as annexure 17 to the affidavit. He further argued while placing para 3 of the supplementary affidavit dated 28.02.2024 that the applicant has a criminal history of one case. The applicant is in jail since 10.01.2024.
8. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail. It is argued that the family of the applicant and the deceased were having a dispute with regards to the property. It is argued that the deceased was troubled mentally as such he committed suicide and died. It is argued that as such the bail application of the applicant be rejected.
9. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is not named in the FIR. Initially the FIR was lodged under Sections 302, 448, 506 IPC but during investigation the same has been converted into a case under Sections 306, 448, 506 IPC. The deceased was not found to have received any bodily injury. The cause of death could not be ascertained and viscera was preserved which was subsequently found to contain alimunium phosphide poison. There was a dispute going on between the deceased and the family of the applicant with regards to property.
10. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
11. Let the applicant Akash Tomar, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
12. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
13. The bail application is allowed.
Order Date :- 20.3.2024 M. ARIF (Samit Gopal, J.)