Yashpal Yadav v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30209 of 2023 Applicant :- Yashpal Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Noor Muhammad,Yogesh Kumar Srivastava Counsel for Opposite Party :- G.A.,Satendra Singh Hon'ble Rajeev Misra,J.

¶1Heard Mr. Noor Muhammad, the learned counsel for applicant-Yashpal Yadav, the learned A.G.A. for State and Mr. Satendra Singh, the learned counsel representing first informant.

¶2Perused the record.

¶3Instant bail application has been filed by applicant-Yashpal Yadav seeking his enlargement on bail in Case Crime No.918 of 2022 under Section 302 I.P.C., Police Station-Shikohabad, District-Firozabad, during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 12.11.2022, a prompt F.I.R. dated 22.11.2022, was lodged by first informant-Anil Kumar @ Bhole (brother of the deceased) and was registered as Case Crime No.918 of 2022 under Section 302 I.P.C., Police Station-Shikohabad, District-Firozabad,. In the aforesaid F. I.R., an unknown person has been arraigned as solitary accused.

¶5The gravamen of the allegations made in the F.I.R. is to the effect that some unknown persons caused death of the brother of first informant namely Sunil (deceased) in his house. The discovery of death was made after the lock of the door of the house of the deceased was opened by the first informant namely Anil Kumar @ Bhole

¶6After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter, inquest (panchayatnama) of the body of deceased was conducted on

19.09.2022. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was categorised as homicidal and the cause of death of deceased was said to be ante mortem injuries sustained by the deceased. It is apposite to mentioned here that Veerbhan is one of the Panch witness. Subsequent to above, the post-mortem of the body of the deceased was conducted. The Doctor, who conducted the autopsy of the body of deceased opined that the cause of death of deceased is shock and haemorrhage as a result of ante mortem injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:- i. Incised wound over right side and contusion of 4 x 2 cm. ii. Incised wound (10x1) cm right posterior aspect. iii. Incised wound left irregual region (5x2) iv. Abrasion left posterior blow (4 x 2) cm. v. Abrasion right shoulder (4x7) cm.

¶7Complicity of applicant Yashpal Yadav and Hazari Prasad emderged in the statement of witness Veer Bhan, who was examined under Section 161 Cr.P.C.. Subsequently, applicant Yashpal Yadav and Hazari Prasad were arrested. No recovery was either made on the pointing of co-accused Hazari Prasad or from his person. However, on the pointing of applicant-Yashpal Yadav, the recovery of Mobile Phone of deceased was made.

¶8On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant Yashpal Yadav and co-accused Hazari Prasad is fully established in the crime in question. He accordingly submitted the charge sheet dated 24.12.2022 whereby applicant Yashpal Yadav and co-accused Hazari Prasad have been charge sheeted under Section 302 I.P.C.

¶9It is then contended that after submission of aforementioned charge sheet, cognizance was taken upon same by the concerned Magistrate. Since the offence complained of is exclusivelyu triable by the court of sessions, resultantly, concerned Magistrate committed the case to the Court of Sessions. As a consequence of above, Sessions Case No.487 of 2023 (State Vs. Yashpal and others) under Section 302 and 120B I.P.C. came to be registered. On date two prosecution witnesses of fact i.e. P.W.-1 Anil Kumar @ Bhole (first informant) and P.W.-2 Veer Bhan (eye witness of the occurrence) have been examined upto thi state.

¶10At the very outset, the learned counsel for applicant submits that co-accused Hazari Prasad has already been enlarged on bail by this Court vide order dated 01.06.2023 passed in Criminal Misc. Bail Application No.12190 of 2023 (Hazari Prasad Vs. State of U.P.). For ready reference the order dated 01.06.2023 is reproduced herein-under: "

वररममनदमणणणकपककररजममनरपमररनमपत,

आववदकहजमररपसमदककओर

सवमम0 अ0 सस0 918

सन2022,

अनररर धमरम302, 120-बरभम०दस०वव०,

रमनमवशककहमबमद,

जजलमवफरकजमबमदममजममनरपरममककरनवहवरमपसरमर

वकयमरयमहह।

पररवमदरककओरसवसवरशररमममकहनएवसहररशचनददमबवववदमनअजधवकमरर

नववकमलरनमममदमजखलवकयम,

इसवपतमवलरपररखमजमय। आवेदकoके oववदानoअजधवका,oपररवादीoके oववदानoअजधवकाoएवंoववदानoअपर शासकीयoअजधवकाoकोoसुनाoतथाoपतावलीoकाoपररशीलनoवकया। आवेदकoके oववदानoअजधवकाoनेoतकर oपसतुतoवकयाoवकoआवेदकoकोoइसoपकरण मेoगलतoएवंoफजरoतरीके oसेoझूठाoफँ सायाoगयाoहै,oउसनेoकजथतoअपराधoकाररत नहीoवकयाoह,ै oघटनाoकीoपथमoसूचनाoररपोटरoअजातoमेoजलखायीoगयीoहoै आवेदक नामजदoअवभयकु oनहीoहै,oआवेदकoकोoसहoअवभयकु oके oबयानoके oआधारoपर मुलजजमoबनायाoगयाoहै.oआवेदकoकाoकोईoपूवरoआपराजधकoइवतहासoनहीoहै, चशमदीदoसाकीoवीरभानoदाराoवववेचकoकोoवदएoगएoबयानoमoे आयाoहoै वकoहजारी नेoसुनीलoयादवoकीoचाकू oसेoगदरनoकाटoदीoथीoऔरoचाकू oआसoपासoहीoपडoे हहए थे,oउसेoयशपालoवoहजारीoनेoधमकीoदीoथीoवकoअगरoवकसीoसेoकु छoकहाoतोoतेरा भीoयहीoहालoकर,े oउसेoडरoलगoरहाoथा,oजजसके oकारणoउसनेoघटनाoके oबारoे मे वकसीoकोoकछoनहीoबतायाoथाoबादoमेoघटनाoके oबारoे मoे मृतकoके oभाईoअवनलoवु इनदलoजसंहoकोoबतायाoथा,oआवेदकoवनदरषoहoै तथाoवहoइसoपकरणoमेoवद0o22-12-2022oसेoकारागारoमेoवनरदoहै,oइसजलएoआवेदकoकोoजमानतoपरoछोडoवदया जायo। पररवादीoके oववदानoअजधवकाoएवंoववदानoअपरoशासकीयoअजधवकाoनेoआवेदक ह रके oजमानतoकाoपबलoववरोधoकरतेoहएoतकoपसतुतoवकयाoवकoआवेदकo/oअवभयकु दाराo काररतoअपराधoसजं ेयoएवंo गमभीरoपकृ वतo काo है,oइसजलएoआवेदकoको जमानतoपरoनoछोडाoजाय। आवेदकoके oववदानoअजधवकाoके oतकरoके oपररपेकयoमoे पतावलीoपरoउपलबधं सारवानoतथयोoएवंoपररबसथवतयोoकाoसमगoरपoसेoअवलोकनoकरनेoके oबाद, सबूतोoकीoपकृ वतoऔरoवकसीoभीoठोसoववरोधातमकoसामगीoकीoअनुपबसथवतoएवं उपलबधoसामगीoसेoछेडछाडoकीoसंभावनाoनoहोनेoके oतथयoकोoदेखतेoहहएoमेरी रायoमेoआवेदकoकोoजमानतoपरoमुकoकरनेoकाoउपयकु oआधारoह।ै अतःoवादoके oगणु oदोषoपरoवबनाoकोईoवटपपणीoवकएoहहएoआवेदकoकोoउपरोक ववणरतoअपराधoमेo संबंजधतoनयायालयoकीo सनतुवषo परoवयवकगतoबंध-पतoएवं अजधकoधनरावशoके oदोoसथानीयoपवतभूoपसतुतoकरनेoपरoवनमनजलजखतoशतरoकें साथoजमानतoपरoछोडoवदयाoजाय। 1-आवेदकoवववेचनाoयाoपरीकणoके oदौरानoअवभयोजनoसाकयोoके oसाथoछेडछाड नहीoकरगे ा।o 2-oआवेदकoअवभयोजनoसावकयोo वoपीवडत o/ oवशकायतकतारo कोo डरायेगाo / धमकायेगाoनहीo। 3-oआवेदकoनयायालयoके oआदेशोoकाoपालनoकरगे ा,oवहoपरीकणoके oदौरानoवबना कोईoअनावशयकoसथगनoजलएoवनयतoवतजथoपरoनयायालयoमoे उपबसथतoहोगाoतथा परीकणoमेoईमानदारीoसेoसहयोगoकरगे ा। 4-oआवेदकoजमानतoपरoररहाoहोनेoके oबादoजमानतoकीoसवतंतताoकाoदरु पयोग नहीo करगे ाo औरoवकसीo भीo अपराजधकoगवतववजधo मेo जल्o नहीo होगाo नoकोई अपराजधकoकृ तयoकरगे ा। 5-

आववदकपतयकयमअपतयकरपसवमममलवकवरथययसवपररवचरवकसरभर

वयवकयमपमजलसअजधकमररययककककईपलकभनयमधमककनहहदवरमनहरउनसव

ककईवमयदमकरवरम,

जजसकवकमररउनहमनयमयमलयममरथययककउजमररकरनवसव

ववरररहनमपडव।

उपरककशररसममसववकसरकवउलसघनकवमममलवमम,

पररकरनयमयमलयआववदक

ककजममनरवनयममनमसमररदकरनवककसवरसतहह।"

¶11On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to that of co-accused Hazari Prasad who has already been enlarged on bail. He also contends that there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the bail order of co-accused Hazari Prasad, applicant is also liable to be enlarged on bail on the ground of parity.

¶12It is then contended that initially the present case was a case of circumstantial evidence but has now got converted into a case of direct evidence. On account of testimony of P.W..-2 Veer Bhan, who alleges to be an eye witness of the occurrence. The credibility and reliability of P.W.-2, Veer Bhan has been seriously doubted by the learned counsel for applicant. He contends that P.W.-2 Veer Bhan is the witness of inquest. He was present at the time of inquest proceeding but did not disclose the complicity of applicant Yashpal Yadav and Hazari Prasad in the crime in question. It is then contended that P.W.-2 Veer Bhan accompanied the first informant to the concerned police station at the time of lodging the F.I.R. which is clearly depicted from his deposition before court below as is apparent from the recital contained at page 29 of the supplementary affdavit filed by the learned counsel for applicant in Court today. However, upto this stage no disclosure was made by this witness to the first informant that applicant Yashpal Yadav and Hazari Prasad have committed the crime in question. The complicity of applicant Yashpal Yadav and co-accused Hazari Prasad has emerged in the crime in question for the first time in the statement of Veer Bhan, which is a clear after thought. On the above premise, he submits that no adverse inference can be drawn against applicant on the basis of the statement of P.W.-2.

¶13Even 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 custody since 03.12.2023. As such he has undergone approximately nine and a half months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends 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.

¶14Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submits that since applicant is a charge-sheet accused, therefore he does not deserve any indulgence by this Court. Upto this stage two prosecution witnesses have been examined withere in complicity of applicant in the crime in question stands clearly established. Morever, the case of present applicant is distinguishable from that of co-accused Hazari Prasad, who has already been granted bail on the ground that recovery of Mobile Phone of the deceased has been made from present applicant whereas no recovery was made from co-accused Hazari Prasad. As such, the case of present applicant is clearly distinguisdhable from bailed out co-accused Hazari Prasad. They therefore submit that no sympathy be shown by this Court in favour of applicant. On the cumulative strength of above, they submit that present application for bail is liable to be rejected by this Court.

¶15When confronted with above, the learned counsel for applicant rejoined his previous submission. He further submits that the recovery is false. The same is implanted. There is no independent witness of recovery. As such, the came cannot be relied upon. Moreover, the recovery of Mobile Phone of the deceased from the applicant is by itself not such an incriminating cricumstance so as to infer the guilt of the applicant in the crime in question.

¶16Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant,upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that co-accused Hazari Prasad has already been enlarged on bail, as per deposition of P.W.-2 Veer Bhan, who alleges to be an eye witness of the occurrence, role assigned to applicant Yashpal and Veer Bhan is joint and common, initially the case was one of the circumstantial evidence but now converted into a case of direct evidence, on account of deposition of P.W.-2 Veer Bhan who alleges to be an eye witness of the occurrenc, the credibility and reliability of the alleged eye witness Veer Bhan has been doubted by the learned counsel for applicant, with reference to the fact that he is also a witness of inquest proceedings (punch witness) but no disclosure was made by him regarding complicity of applicant and co-accused Hazari Prasad in the crime in question is established at the time of inquest proceedings, this witness accompanied the first informant to the police station, however, no disclosure was made by him to the first informant at that time regarding complicity of applicant and co accused Hazari Prasad in the crime in question, therefore, credibility and reliability of the P.W.-2 an eye witness of the occurrence is prima facie doubtful upto this stage, clean antecedents of the 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 stand crystallized, yet in spite of above the learned AG.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the present application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

¶17Accordingly, present application for bail is allowed.

¶18Let the applicant-Yashpal Yadav involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.

(ii) 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) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

¶19The 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 of applicant and send him to prison Order Date :- 19.10.2023 YK High Court of Judicature at Allahabad