Allowed

Omkaar @ Abhishek v. State of U.P.

Allahabad HC11 Feb 2020BAIL/4353/2020

Case brief

AI extract

What is this about?

The High Court discharged the bail application of Omkhaar @ Abhishek, a student accused of conspiracy in a murder case arising from a property dispute. The court found his role limited to conspiracy with no active participation, facilitating his release on personal bond and two sureties subject to strict conditions.

What did the court decide?

The applicant was released on bail on furnishing a personal bond and two sureties subject to specific conditions.

Omkaar @ Abhishek Vs State of U.P. — Property and Title | Allahabad HC (2020)

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Court No. - 16

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4353 of 2020

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Applicant :- Omkaar @ Abhishek Opposite Party :- State of U.P. Counsel for Applicant :- Akash Tomar Counsel for Opposite Party :- G.A.

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Hon'ble Samit Gopal,J.

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Supplementary counter affidavit and supplementary rejoinder affidavit have been filed today which are taken on record.

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Heard Sri Vinay Saran, learned Senior Counsel assisted by Sri Akash Tomar, learned counsel for the applicant, learned counsel for the first informant and the learned A.G.A. for the State.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Omkaar @ Abhishek seeking enlargement on bail during trial in connection with Case Crime No. 747 of 2019, under Sections 147, 148, 149, 302, 120-B and 34 I.P.C., registered at P.S. Medical College, District Meerut.

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The prosecution case as unfolded in the First Information Report lodged by Km. Rajni on 18.10.2019 at about 23:30 hrs for an incident alleged to have taken place on 18.10.2019 at about 20:00 hrs is that Mukesh Kumar Sharma, Advocate who is the father of the first informant and is also the deceased was strolling, in the night at around 08:00 P.M. and was about 100 mtrs away from his house, wherein the first informant and her sister were standing at the door of the house and heard sound of firearms, on which, they saw 6-7 persons near her father. Amongst them she identified Nasir, Naushad, Faisal, Jubair and Narayan armed with firearms running towards village and shouting that they have finished the person, on which, the first informant and others raised hue and cry and went to the place of occurrence and saw her father lying in a pool of blood. He was immediately taken to the hospital where doctors declared him dead. The motive as alleged is that there was some property in the village regarding which a litigation was going on between Chetan, Omkar and Yogesh, due to which, they were inimical. The said persons conspired together and father of the first informant has been murdered.

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Learned Senior Counsel argued that a partition suit was filed by the deceased for the said land in dispute, in which, a decree

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dated 08.05.2017 was passed to the effect that 50% of the said land will vest with the deceased and the remaining 50% will vest with the heirs of Lokesh who is the father of the applicant. Subsequently, the applicant and his mother Smt. Poonam @ Vandana executed a sale deeds on 27.03.2018 in favour of the Nasir and Jubair who are the named accused persons in the present matter for a part of the land described and identified as agricultural land having Khata No. 198, Khasra No. 313-kha having an area of 725 sq.mtrs. The said land was sold by two sale deeds Bearing No. 3033 and 3024 dated 27.03.2018 registered in the office of Sub-Registrar 1st Sadar Meerut in favour of the Nasir and Jubair Ahmad respectively. It is further argued that subsequently a suit for cancellation of the said two sale deeds was filed by the applicant on 28.05.2019 which is numbered as Suit No. 42 of 2019 (Smt. Poonam Devi @ Vandana Sharma and another Vs. Nasir Khan and another) with the reliefs that the said two sale deeds be cancelled by a decree of the Court. The plaint of the said suit is annexure R.A. 2 to the rejoinder affidavit.

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Learned Senior Counsel further argues that the present case is a case of single shot, there is no light present at the place of occurrence as is evident from the site plan of the place of occurrence. Even as per the First Information Report, the role assigned to the applicant is of conspiracy only. The applicant has no criminal history and is a student of PGDM 1st year as stated in para 19 of the rejoinder affidavit. He further argued that as the suit for cancellation of the sale deed has been filed and is pending, there was no occasion and motive for the applicant to involve himself in the present matter. There is no other litigation pending between the parties. He further points out that in the suit for partition, the decree dated 8.05.2017 as passed is an ex-parte decree which has been acted upon and the mutation and entry in the relevant revenue records have been carried out and as such there was no reason and occasion for the applicant to involve himself in the present matter. The applicant is in jail since 19.10.2019 having no other criminal antecedent.

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Per contra, learned AGA as well as the learned counsel for the first informant oppose the prayer for bail and argued that the applicant is the nephew of the deceased. A dispute pertaining to the landed property is there between the deceased and the applicant and his family. Since, the decree was ex-parte, the applicant even had a grudge against the same from the deceased. The applicant had sold out the share of land of the deceased, and later on, has filed the suit for cancellation of the sale deed making purchaser thereof as the defendants in a collusive manner. The applicant and his mother had sold out the share of the deceased and filed the said suit for cancellation of

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the sale deed in collusion with two named accused persons who were the purchasers and is enjoying his share of land as the same still vests with them. The applicant had a motive to commit the aforesaid offence. The deceased has eight daughters, out of whom five are unmarried.

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Considering the totality of the case in particular, nature of evidence available on record and further considering the fact that as per the First Information Report, the role assigned to the applicant is that of conspiracy only. Even in the statements of the first informant and her sister, the role as has been assigned is of conspiracy only. The presence of the applicant is not there at the place of occurrence. The sale deeds as executed by the applicant and his mother in favour of the two named accused persons namely Nasir and Jubair, are now before the Court in proceedings for cancellation filed by the applicant and his mother. There is no evidence coming forward to demonstrate any prior meeting of mind between the accused persons. The purchasers of the sale deed are named as accused having been assigned roles along with other co-accused persons. There is no active participation of the applicant as it stands on the record. The applicant has been reported as having no criminal history and a student, therefore, without further any comments on merit, I am inclined to release the applicant on bail.

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Let the applicant Omkaar @ Abhishek, 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:-

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i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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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.

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(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.

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(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

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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.

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(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 229A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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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.

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The bail application is allowed.

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Order Date :- 11.2.2020 M. ARIF

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(Samit Gopal, J.)

Omkaar @ Abhishek v. State of U.P.

Case brief

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Omkaar @ Abhishek v. State of U.P.

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