Saurabh Yadav @ Kandu Yadav vs State Of U.P. on 26 July, 2024

[Cites 10, Cited by 0]

Allahabad High Court

Saurabh Yadav @ Kandu Yadav vs State Of U.P. on 26 July, 2024

Bench: Rajeev Misra





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:120510
 
Court No. - 64
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26767 of 2024
 
Applicant :- Saurabh Yadav @ Kandu Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Nand Kishor Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mrs. Shilpa Ahuja, Advocate, holding brief of Mr. Nand Kishor Mishra the learned counsel for applicant and the learned A.G.A. for State

2. Perused the record.

3. This 4th repeat application for bail has been filed by applicant-Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No.104 of 2022, under Sections 302, 120B I.P.C, Police Station-Anjar, District- Mahoba,during the pendency of trial.

4. The first bail application of applicant was rejected by this Court vide order dated 24.11.2022 passed in Criminal Misc. Bail Application No. 38000 of 2022 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-

"Heard Mr. Rafeek Ahmad Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Tripathi, for first informant.

This application for bail has been filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba, during the pendency of trial.

Perused the record.

Record shows that in respect of an incident, which is alleged to have occurred on 28.5.2022, a delayed F.I.R. dated 30.5.2022 was lodged by first informant Ram Lal (faher of the prosecutrix) and was registered as Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba. In the aforesaid F.I.R., two persons namely Kandu Yadav (applicant herein) and Rahul have been nominated as named accused.

The Gravamen of the allegations made in the F.I.R. is to the effect that named accused Kandu Yadav caused the death of Ajay Pal by firing a shot at him with a country made pistol.

Prior to the lodging of the F.I.R. the inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 30.5.2021 on the information given by Vipin Kumar Ward Boy Medical College, Jhansi. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal i.e. on account of gun shot injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-

Entry wound No. (1) Gun shot wound of entry present over the dorsal aspect of Rt. thorax 3 cm below to Rt. scapula lower end cut size of entry wound 3 cm x 3 cm wound is lacerated in nature and their margins are inverted and irregular on opening Blackening present in wound.

(2) Around the wound No. (1) Multiple small wounds present in the area of 14 cm x 9 cm On opening an dissection of both injuries No 1and 2 A Black Plastic ticty and 24 (Twenty four) Metalic pellets Recovered from the (Rt) lung Rt. lung ruptured.

Clotted blood about 300 ml present in upper abdominal region.

In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem fire arm injury. Subsequently, the application was arrested. On his pointing a country made gun of .12 bore was recovered.

During the course of investigation, Investigating Officer examined various witnesses namely Smt. Reena Rajpoot, Rohit Rajpoot, Lekhraj Rajpoot, Balwan Singh, Jai Singh, Ram Prakash Tewari and Suresh Rajpoot. Ram Prakash and Suresh Kumar who were examined by the Investigating Officer under Section 161 Cr. P. C. have clearly deposed that applicant was seen coming from the direction where dead body of the deceased was lying. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to be conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 20.7.2022, whereby named accused have been charge sheeted under Sections 302, 120 B IPC.

Learned counsel for applicant submits that even though applicant is named as well as charge sheeted accused, but he is innocent.

It is next contended that there is no eyewitness of the occurrence. Thus, present case is a case of circumstantial evidence. As such same is required to be considered in the light of the parameters required to be established in a case of circumstantial evidence as per law laid down by Apex Court in paragraph 152 of the judgement in Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622. However, none of the parameters as enunciated in aforesaid judgerment are satisfied in the present case.

It is then contended that the recovery of the weapon of assault on the pointing of applicant is implanted, as there is no independent witness of alleged recovery. The inference of last seen drawn on the basis of statement of Ram Prakash and Suresh Kumar is not so clinching so as to infer the guilt of the applicant and no other hypothesis. Even otherwise applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 30.5.2022. As such, he has undergone 5 1/2 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the present application for bail. He submits that applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The recovery of weapon of assault has been made on the pointing of applicant. The gun shot injury sustained by the deceased can be caused from the weapon recovered from the applicant. The motive behind the occurrence is also established against applicant as per statement of witness Ram Prakash. As such, present application for bail is liable to be rejected.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for state,upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a named as well as charge sheeted accused, recovery of the weapon of assault was made on the pointing of applicant, the recovery of weapon of assault on the pointing of applicant shall not be false on account of absence of an independent witness in view of judgement of Supreme Court in Mukesh and another Vs. STATE (NCT OF DELHI) AND OTHERS, (2017) 6 SCC, 1, the testimony of Ram Prakash and Suresh Rajpoot cannot be disbelieved at this stage in the absence of the applicants version of occurrence, but without expressing any opinion on the merits of the case, no case for bail is made out.

Accordingly, present bail application fails and is liable to be rejected.

It is, accordingly, rejected."

5. The second bail application of applicant was rejected by this Court vide order dated 23.08.2023 passed in Criminal Misc. Bail Application No. 30225 of 2023 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-

"Heard Mr. Ramanuj Yadav, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This is a repeat application for bail filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120-B IPC, Police Station- Ajnar, District Mahoba during the pendency of trial i.e. Sessions Trial No. 412 of 2022, is now pending in the Court of Additional Sessions Judge, Court No.1, Mahoba.

First bail application of applicant i.e. Criminal Misc. Bail Application No. 38000 of 2022 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P) was rejected by this court by a detailed order dated 24.11.2022. For ready reference, the same is reproduced herein under:

"Heard Mr. Rafeek Ahmad Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Tripathi, for first informant.

This application for bail has been filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba, during the pendency of trial.

Perused the record.

Record shows that in respect of an incident, which is alleged to have occurred on 28.5.2022, a delayed F.I.R. dated 30.5.2022 was lodged by first informant Ram Lal (faher of the prosecutrix) and was registered as Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba. In the aforesaid F.I.R., two persons namely Kandu Yadav (applicant herein) and Rahul have been nominated as named accused.

The Gravamen of the allegations made in the F.I.R. is to the effect that named accused Kandu Yadav caused the death of Ajay Pal by firing a shot at him with a country made pistol.

Prior to the lodging of the F.I.R. the inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 30.5.2021 on the information given by Vipin Kumar Ward Boy Medical College, Jhansi. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal i.e. on account of gun shot injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-

Entry wound No. (1) Gun shot wound of entry present over the dorsal aspect of Rt. thorax 3 cm below to Rt. scapula lower end cut size of entry wound 3 cm x 3 cm wound is lacerated in nature and their margins are inverted and irregular on opening Blackening present in wound.

(2) Around the wound No. (1) Multiple small wounds present in the area of 14 cm x 9 cm On opening an dissection of both injuries No 1and 2 A Black Plastic ticty and 24 (Twenty four) Metalic pellets Recovered from the (Rt) lung Rt. lung ruptured.

Clotted blood about 300 ml present in upper abdominal region.

Learned counsel for applicant submits that even though applicant is named as well as charge sheeted accused, but he is innocent.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a named as well as charge sheeted accused, recovery of the weapon of assault was made on the pointing of applicant, the recovery of weapon of assault on the pointing of applicant shall not be false on account of absence of an independent witness in view of judgement of Supreme Court in Mukesh and another Vs. STATE (NCT OF DELHI) AND OTHERS, (2017) 6 SCC, 1, the testimony of Ram Prakash and Suresh Rajpoot cannot be disbelieved at this stage in the absence of the applicants version of occurrence, but without expressing any opinion on the merits of the case, no case for bail is made out.

Accordingly, present bail application fails and is liable to be rejected.

It is, accordingly, rejected. "

Learned counsel for applicant contends that subsequent to the order dated 24.11.2022, co-accused Ragni has been enlarged on bail vide order dated 28.4.2023. Applicant in in jail since 30.5.2022. As such, he has undergone more than one year and three months of incarceration. The trial is proceeding at the snail's space. There is no likelihood of the trial getting concluded in near future. As such, applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the weapon of assault was recovered on the pointing of applicant. Recovery corroborates with the gun shot injuries sustained by deceased. It is then contended by learned A.G.A. that co-accused is a lady. Referring to the provisions contained in proviso to section 437 Cr.P.C. he submits that co-accused being a lady was liable to be enlarged on bail. As such, no parity can be determined by applicant with co-accused Ragni who has been enlarged on bail. Two prosecution witnesses of fact P.W.1 and P.W.2 have already been examined. On the above premise, it cannot be said that trial is proceedings at an snail's space. As such, no new or good ground is made out to enlarge the applicant on bail. He, therefore, contends that the application is liable to be rejected.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record,? evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the material as has emerged on the record and noted herein above, no new or good ground is made out to enlarge the applicant on bail.

In view of above, the present application fails and is liable to be rejected.

It is accordingly rejected. "

6. The third bail application of applicant was rejected by this Court vide order dated 17.05.2024 passed in Criminal Misc. Bail Application No. 18908 of 2024 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-

"Heard Mr. N.K. Mishra, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This repeat application for bail has been filed by applicant- Saurabh Yadav @ Kandu Yadav, seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B, IPC, Police Station- Ajnar, District- Mahoba, during the pendency of trial.

The first bail application of applicant was rejected by this Court vide order dated 24.11.2022, passed by this Court in Criminal Misc. Bail Application No. 38000 of 2022 (Saurabh Yadav @ Kandu Yadav). For ready reference, the same is reproduced herein under:

"Heard Mr. Rafeek Ahmad Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Tripathi, for first informant.

This application for bail has been filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba, during the pendency of trial.

Perused the record.

Record shows that in respect of an incident, which is alleged to have occurred on 28.5.2022, a delayed F.I.R. dated 30.5.2022 was lodged by first informant Ram Lal (faher of the prosecutrix) and was registered as Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba. In the aforesaid F.I.R., two persons namely Kandu Yadav (applicant herein) and Rahul have been nominated as named accused.

The Gravamen of the allegations made in the F.I.R. is to the effect that named accused Kandu Yadav caused the death of Ajay Pal by firing a shot at him with a country made pistol.

Prior to the lodging of the F.I.R. the inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 30.5.2021 on the information given by Vipin Kumar Ward Boy Medical College, Jhansi. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal i.e. on account of gun shot injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-

Entry wound No. (1) Gun shot wound of entry present over the dorsal aspect of Rt. thorax 3 cm below to Rt. scapula lower end cut size of entry wound 3 cm x 3 cm wound is lacerated in nature and their margins are inverted and irregular on opening Blackening present in wound.

(2) Around the wound No. (1) Multiple small wounds present in the area of 14 cm x 9 cm On opening an dissection of both injuries No 1and 2 A Black Plastic ticty and 24 (Twenty four) Metalic pellets Recovered from the (Rt) lung Rt. lung ruptured.

Clotted blood about 300 ml present in upper abdominal region.

Learned counsel for applicant submits that even though applicant is named as well as charge sheeted accused, but he is innocent.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a named as well as charge sheeted accused, recovery of the weapon of assault was made on the pointing of applicant, the recovery of weapon of assault on the pointing of applicant shall not be false on account of absence of an independent witness in view of judgement of Supreme Court in Mukesh and another Vs. STATE (NCT OF DELHI) AND OTHERS, (2017) 6 SCC, 1, the testimony of Ram Prakash and Suresh Rajpoot cannot be disbelieved at this stage in the absence of the applicants version of occurrence, but without expressing any opinion on the merits of the case, no case for bail is made out.

Accordingly, present bail application fails and is liable to be rejected.

It is, accordingly, rejected. "

Thereafter the applicant filed a repeat application for bail which also came to be rejected by this Court vide order dated 23.8.2023, passed in Criminal Misc. Bail Application No. 30225 of 2023 (Saurabh Yadav @ Kandu Yadav) Same is extracted herein under:

"Heard Mr. Ramanuj Yadav, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This is a repeat application for bail filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120-B IPC, Police Station- Ajnar, District Mahoba during the pendency of trial i.e. Sessions Trial No. 412 of 2022, is now pending in the Court of Additional Sessions Judge, Court No.1, Mahoba.

First bail application of applicant i.e. Criminal Misc. Bail Application No. 38000 of 2022 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P) was rejected by this court by a detailed order dated 24.11.2022. For ready reference, the same is reproduced herein under:

"Heard Mr. Rafeek Ahmad Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Tripathi, for first informant.

This application for bail has been filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba, during the pendency of trial.

Perused the record.

Record shows that in respect of an incident, which is alleged to have occurred on 28.5.2022, a delayed F.I.R. dated 30.5.2022 was lodged by first informant Ram Lal (faher of the prosecutrix) and was registered as Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba. In the aforesaid F.I.R., two persons namely Kandu Yadav (applicant herein) and Rahul have been nominated as named accused.

The Gravamen of the allegations made in the F.I.R. is to the effect that named accused Kandu Yadav caused the death of Ajay Pal by firing a shot at him with a country made pistol.

Prior to the lodging of the F.I.R. the inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 30.5.2021 on the information given by Vipin Kumar Ward Boy Medical College, Jhansi. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal i.e. on account of gun shot injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-

Entry wound No. (1) Gun shot wound of entry present over the dorsal aspect of Rt. thorax 3 cm below to Rt. scapula lower end cut size of entry wound 3 cm x 3 cm wound is lacerated in nature and their margins are inverted and irregular on opening Blackening present in wound.

(2) Around the wound No. (1) Multiple small wounds present in the area of 14 cm x 9 cm On opening an dissection of both injuries No 1and 2 A Black Plastic ticty and 24 (Twenty four) Metalic pellets Recovered from the (Rt) lung Rt. lung ruptured.

Clotted blood about 300 ml present in upper abdominal region.

Learned counsel for applicant submits that even though applicant is named as well as charge sheeted accused, but he is innocent.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a named as well as charge sheeted accused, recovery of the weapon of assault was made on the pointing of applicant, the recovery of weapon of assault on the pointing of applicant shall not be false on account of absence of an independent witness in view of judgement of Supreme Court in Mukesh and another Vs. STATE (NCT OF DELHI) AND OTHERS, (2017) 6 SCC, 1, the testimony of Ram Prakash and Suresh Rajpoot cannot be disbelieved at this stage in the absence of the applicants version of occurrence, but without expressing any opinion on the merits of the case, no case for bail is made out.

Accordingly, present bail application fails and is liable to be rejected.

It is, accordingly, rejected. "

Learned counsel for applicant contends that subsequent to the order dated 24.11.2022, co-accused Ragni has been enlarged on bail vide order dated 28.4.2023. Applicant in in jail since 30.5.2022. As such, he has undergone more than one year and three months of incarceration. The trial is proceeding at the snail's space. There is no likelihood of the trial getting concluded in near future. As such, applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the weapon of assault was recovered on the pointing of applicant. Recovery corroborates with the gun shot injuries sustained by deceased. It is then contended by learned A.G.A. that co-accused is a lady. Referring to the provisions contained in proviso to section 437 Cr.P.C. he submits that co-accused being a lady was liable to be enlarged on bail. As such, no parity can be determined by applicant with co-accused Ragni who has been enlarged on bail. Two prosecution witnesses of fact P.W.1 and P.W.2 have already been examined. On the above premise, it cannot be said that trial is proceedings at an snail's space. As such, no new or good ground is made out to enlarge the applicant on bail. He, therefore, contends that the application is liable to be rejected.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the material as has emerged on the record and noted herein above, no new or good ground is made out to enlarge the applicant on bail.

In view of above, the present application fails and is liable to be rejected.

It is accordingly rejected. "

Now the applicant has filed third bail application.

Learned counsel for applicant contends that F.S.L. report in respect of the recovery of fire arm from the applicant has not yet been received. On the aforesaid premise, he contends that applicant is liable to be enlarged on bail. Learned counsel for applicant contends that the only evidence that has emerged against applicant upto this stage is the recovery of alleged weapon of assault on the pointing of applicant. However, the F.S.L. report has not yet been received. As such, the applicant is liable to be enlarged on bail.

Even otherwise, applicant is man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 30.5.2022. As such, they have undergone more than one year and one month of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants. As such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant. It is thus urged that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the repeat application for bail. He submits that the ground available today was also available at the time of first and second bail applications, but the Court did not consider the same. Admittedly the weapon of assault has been recovered on the pointing of applicant himself. The submission urged by learned counsel for applicant is by itself not so sufficient so as to infer the innocence of the applicant. Applicant has been charge sheeted under section 302 IPC, therefore the period of incarceration undergone by revisionist cannot by itself be said to be so sufficient so as to enlarge the applicant on bail. Learned A.G.A. also submits that trial is proceeding smoothly, inasmuch as five prosecution witness have been examined. Up to this stage, no new, good or sufficient ground has emerged so as to enlarge the applicant on bail. As such, this repeat application for bail is liable to be rejected.

When confronted with above, the learned counsel for applicant could not overcome the same.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that objections raised by the learned A.G.A. in opposition to the present repeat application for bail could not be dislodged by the learned counsel for applicant, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of the present repeat application for bail, but without making any comment on the merits of the case, this Court does not find any new good or sufficient ground to enlarge the applicant on bail.

In view of above, the application fails and is liable to be rejected.

It is accordingly rejected."

7. Learned counsel for applicant contends that earlier bail applications filed by applicant were rejected primarily on the ground that the weapon of assault i.e. countrymade pistol was recovered on the pointing of applicant. However, subsequently, the FSL report regarding the same submitted, wherein, it has been opined that the weapon so recovered on the pointing of applicant is not the same weapon from which the shots were fired upon the deceased. On the above premise, the learned counsel for applicant contends that since the cause for rejecting the bail application filed by applicant now stands vanished, therefore, applicant is liable to be enlarged on bail. It is then contended that applicant has been charge sheeted under Section 302 read with Section 120-B I.P.C. However, conspiracy, which is a closed door affairs and therefore, subject to trial evidence. In view of the nature of offence of conspiracy is difficult to collect direct evidence. Therefore, by virtue of the law laid down by the Apex Court conspiracy can be inferred from the circumstance also however, upto this stage, no such circumstance has emerged in the entire case diary so as to infer the conspiracy against the applicant. As such, the applicant is liable to be enlarged on bail.

8. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 30.05.2022. As such, he has undergone more than 2 years and 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. It is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

9. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that earlier bail applications filed by applicant were rejected primarily on the ground that the weapon of assault i.e. countrymade pistol was recovered on the pointing of applicant but subsequently, the said ground has vanished inasmuch according to the FSL report regarding the weapon so recovered on the pointing of applicant is not the same weapon from which shots were fired upon the deceased, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Saurabh Yadav @ Kandu Yadav, be released on bail in the aforesaid case crime number 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/SHE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

13. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 26.7.2024/Imtiyaz

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Allahabad High Court