Durvesh v. State of U.P

Court No. - 68 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49998 of 2023 Applicant :- Durvesh Opposite Party :- State of U.P. Counsel for Applicant :- Mahendra Singh Counsel for Opposite Party :- G.A. Hon'ble Dr. Gautam Chowdhary,J.

¶1Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

¶2Learned counsel for the applicant submits that applicant is innocent and has been falsely implicated in the present case. Learned counsel further submits that F.I.R. was lodged in unknown alleging therein that brother of complainant who was doing his night duty in his office, found dead in the morning and there are several injuries showing on his person. Learned counsel for the applicant further submits after inquest proceedings, postmortem of the deceased was conducted and seven injuries were found on his body and his cause of death was found to be shock and hemorrhage due to ante mortem injuries. Learned counsel for the applicant further submits that during course of investigation the Investigating Officer recorded statements of several witnesses but none of them alleged that either they seen the incident or they knew the assailant or made any suspicion upon anyone. Learned counsel for the applicant further submits that one witness, Nandram in his statement before the police made suspicion that on the date of incident he saw that Chhotey Lal and applicant were going behind the motorcycle of the deceased and except this he told nothing. Learned counsel for the applicant further submits that except extra judicial confession of applicant and the co-accused before one witness and except confessional statement of the applicant and co-accused before the police, there is no evidence against the applicant to show his complicity in the commission of offence, which statements are not admissible under the Evidence Act. Learned counsel for the applicant further submits that there is no evidence against the applicant for implicating him in the present case, there is no recovery of any weapon made by the police from the pointing out of the applicant and no motive has been assigned by the prosecution for committing the murder of the deceased by the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 14.07.2023, having no criminal history.

¶3Per contra, learned A.G.A. has opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserve any indulgence.

¶4After perusing the record in the light of the submissions made at the bar and after taking an overall view of all 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, without expressing any opinion on merits of the case, this Court is of the view, that the applicant may be enlarged on bail.

¶5Let applicant-Durvesh, involved in Case Crime No. 350 of 2023, under Section 302 I.P.C., Police Station Civil Lines, District Budaun, be enlarged on bail on furnishing a personal bond and two heavy local sureties each of the like amount to the satisfaction of the court concerned subject to the following conditions:-

(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.

¶6The 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 in accordance with law.

¶7The bail application is allowed. Order Date :- 22.11.2023 Mustaqeem. High Court of Judicature at Allahabad