Allahabad High Court
Babu @ Himanshu vs State Of U.P. on 9 December, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 54 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33849 of 2020 Applicant :- Babu @ Himanshu Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Kumar Yadav Counsel for Opposite Party :- G.A.,Krishna Mohan Tripathi Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Sanjay Kumar Yadav, learned counsel for the applicant, Sri Krishna Mohan Tripathi, learned counsel for the informant and Sri G.P. Singh, learned A.G.A. for the State.
This Bail Application (under Section 439 Cr.P.C.) has been moved for seeking bail in Case Crime No.133 of 2020 under Sections 302/34, 120-B I.P.C., P.S. Civil Lines, District Rampur.
As per F.I.R., which has been lodged by one Shalini Sharma, when her husband Anurag Sharma was returning home from COD Farm, Agapur at about 8.30 p.m. with his colleagues Sunil Yadav and Chatrapal Yadav then from behind, two motorcycles came on which there were four persons sitting and the pillion rider of the motorcycle had opened fire upon the deceased, Anurag Sharma. These assailants on this occurrence were got verified by Chatrapal Yadav and Suni Yadav who had seen them. The informant had also come on the spot after hearing the commotion. Her husband was Zila Sanyojak of Shiv Sena and some persons were inimical towards him, because of which he has been killed.
Submission made by learned counsel for the applicant is that he has not named in the F.I.R.; two witnesses, who have been set up against the applicant are Awdhesh Sharma and Sunil Yadav. Regarding Awdhesh Sharma, it is stated by him that on 19.05.2020 at about 11-11:30 a.m. when he was going to his office, the co-accused, Chatrapal was sitting in front of his office with his brother co-accused, Pawan Yadav and co-accused, Raj Kishore; they all had done namaste to him and thereafter they were talking to each other and he proceeded to office. Next day on 20.05.2020 at about 8:30 p.m. in front of the house of Chatrapal, Raj Kishore and accused-applicant, Babu @ Himashu and Pawan Yadav, co-accused met him on a motor-cycle, Pawan had bag in his hand, they were talking to each other and they became panicky after seeing the witness and after half an hour, the deceased, Anurag Sharma was fired upon just ahead of Amrit Nursing Home. Right then, this witness had taken the deceased to the hospital where he (deceased) died. In the hospital, the co-accused Chatrapal and Pawan had also accompanied him. Post-mortem was conducted and after the cremation the F.I.R. was lodged at the dictation of wife of the deceased and at that time the co-accused, Chatrapal was sitting at the house of deceased, Anurag Sharma. Chatrapal had also told that he should also be made a witness but the wife of the deceased told Chatrapal that he was not present there why should he be a witness and when Chatrapal insisted, then his name was also mentioned as a witness. After the killing of Anurag Sharma (deceased), there was suspicion on Chatrapal. On 29.05.2020, after the arrest of Chatrapal, his brother co-accused Pawan and accused-applicant, Babu @ Himanshu and co-accused Raj Kishore the whole facts have came into light. Now there is no doubt that on 19.05.2020 when these co-accused were sitting in the house of Chatrapal, they were hatching a conspiracy to kill the deceased. Having drawn attention to the statement of this witness, it is argued by him that this witness is scribe of F.I.R. which is said to have been written at the dictation of wife of the deceased and yet he did not reveal all these facts which is now subsequently being revealed about 10 days after the occurrence and why he kept silence for these 10 days is not disclosed.
Further with regard to the statement of other witness Sunil, it is stated that this witness has clearly admitted that he was an accused in the murder of the father of the applicant in which he had gone to jail, therefore he was having enmity with the applicant and because of that reason only he has given statement that when he was going towards the vegetable market on his motor-cycle and was returning from there and as soon as he moved ahead of Amrit Hospital, he saw that the applicant and his companion Raj Kishore had made fire upon the deceased by which he fell down. This statement has also been recorded after 11 days and it is argued that he being eye-witness, why he remained quiet for 11 days and did not disclose about this to the informant.
In view of above, it is argued that the accused-applicant is innocent; he is in jail since 29.05.2020. No recovery of any incriminating article has been made from the applicant or his pointing out. Applicant has criminal history of three case, which is duly explained in para-17 of the affidavit. If accused-applicant is released on bail, he will not misuse the liberty. Co-accused Pawan Yadav had already been granted bail in Crl. Misc. Bail Application No.29262 of 2020 vide order dated 23.11.2020 and therefore he has claimed parity.
Learned A.G.A. and learned counsel for the informant have vehemently opposed the prayer for bail. But when learned counsel for the informant was put the query as to why the said delay of 11 days was made he gave reply that informant of this case is wife of the deceased and therefore these facts could not come on record. He has also pointed out confession statement of the accused-applicant, which led to recovery of pistol from co-accused Pawan and Chatrapal and it is admitted by learned A.G.A. that no report has come on record of FSL proving that the same was used in the commission.
Looking to the fact that the case of the present applicant, taking into consideration the quantum of the punishment, nature of the offence, claim of parity and period of detention in jail, without expressing any opinion on the merits, this case is found to be a fit case for bail.
Let the applicant Babu @ Himanshu involved in aforesaid 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 that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. 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.
Identity, status and residence proof of the applicants and sureties be verified by the court concerned before the bonds are accepted.
Taking into consideration that Covid-19 is continuing and due to which certified copy would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self attested by the counsel for the applicants is placed before the Court, the same would be entertained.
Order Date :- 9.12.2020 Saif