Allowed

Mukesh v. State of U.P.

Allahabad HC9 Dec 2022BAIL/18627/2022

Case brief

AI extract

What is this about?

The High Court allowed a bail application under Section 437/439 CrPC. The court held that since three prosecution witnesses recorded during the trial were declared hostile and denied implicating the applicant, the applicant made out a case for bail. Conditions were laid regarding attendance and appearance.

What did the court decide?

Released on bail by furnishing personal bond and two reliable sureties, subject to conditions of attendance and appearance.

Mukesh Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 64

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18627 of 2022

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Applicant :- Mukesh Opposite Party :- State of U.P. Counsel for Applicant :- Brajesh Kumar Solanki,Bipin Pal Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajiv Gupta,J.

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Learned counsel for the applicant has filed supplementary affidavit today in Court, which is taken on record.

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

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This is second bail application. The first being Criminal Misc. Bail Application No. 1870 of 2021 was rejected on merits by me vide order dated 12.01.2021.

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This application has been filed by the applicant seeking bail in Case Crime No. 230 of 2020, under Sections 302/34, 452, 120-B IPC, Police Station Dataganj, District Budaun, during pendency of trial.

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Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.

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Learned counsel for the applicant has next submitted that after rejection of the first bail application, during the course of trial, statement of three prosecution witnesses, namely, Kallu, Smt. Ram Sanehi and Sheetal has been recorded, however, none of them has supported the prosecution story at all and have been declared hostile.

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Learned counsel for the applicant has next submitted that PW-2 Smt. Ram Sanehi is the real sister of the deceased and she, in her examination-in-chief, has categorically stated that about two years back, while his brother was sleeping on the roof, some unknown person had killed him by opening fire, however, he has not seen either Narendra or Mukesh (applicant), to have caused the death of his brother. On her attention been drawn to her statement recorded under Section 161 CrPC, she has categorically stated that she has not given anysuch statement to the police and in fact, she had not seen the incident.

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Learned counsel for the applicant has next submitted that

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PW-3 Sheetal is the daughter of the deceased and she, in her statement recorded during the course of trial, too has not supported the prosecution story and has stated that she had not seen any assailant and when she had gone on the roof, where her father was sleeping, the assailant had already left the place of the incident. During crossexamination, she has stated that on hearing the fire shot, she reached on the roof top. On being confronted, she has categorically denied the fact that her mother, Mukesh, Narendra, Ram Niwas or Mukesh son of Soran had caused death of her father.

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Learned counsel for the applicant has next submitted that the applicant is in jail since 09.09.2020 and has no criminal history to his credit and has been continuously co-operating in the process of trial. There is no chance of applicant fleeing away from judicial process or tampering with the witnesses, as such, he may be released on bail.

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Per contra, learned AGA has vehemently opposed the prayer for bail but could not dispute the aforesaid facts and the fact that all the three prosecution witnesses, who have been examined, have not supported the prosecution story and have been declared hostile.

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Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is evident that after rejection of the first bail application, during the course of trial, statement of three prosecution witnesses, namely, Kallu, Smt. Ram Sanehi and Sheetal has been recorded, however, none of them has supported the prosecution story at all and have been declared hostile.

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PW-2 Smt. Ram Sanehi is the real sister of the deceased and she, in her examination-in-chief, has categorically stated that about two years back, while his brother was sleeping on the roof, some unknown person had killed him by opening fire, however, he has not seen either Narendra or Mukesh (applicant), who had caused the death of his brother. On her attention been drawn to her statement recorded under Section 161 CrPC, she has categorically stated that she has not given such statement to the police and in fact, she had not seen the incident.

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cross-examination, she has stated that on hearing the fire shot, she reached on the roof top. On being confronted, she has categorically denied the fact that her mother, Mukesh, Narendra, Ram Niwas or Mukesh son of Soran had caused death of her father.

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Furthermore, the applicant is in jail since 09.09.2020 and has no criminal history to his credit. There is no chance of applicant fleeing away from judicial process or tampering with the witnesses.

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In view of the aforesaid facts and circumstances and the fact that all the three prosecution witnesses, who were alleged to be eye-witness of the incident, have not supported the prosecution story and they have been declared hostile, I am of the view that the applicant has made out a case for bail. Let the applicant Mukesh be released on bail in the aforesaid case on furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to the following conditions:-

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(1). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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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(2). The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence without sufficient cause, the trial court may proceed against him under Section 229-A IPC.

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(3). 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. is issued and the 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 IPC.

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(4). The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of the 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.

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It is clarified that the observations, if any, made in this

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order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.

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It is further directed that the identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.

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In case of breach of any of the above conditions, the trial court will be at liberty to cancel the bail.

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The bail application is accordingly allowed. Order Date :- 9.12.2022 Nadim

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Digitally signed by NADIM ALAM Date: 2022.12.09 16:13:28 IST Reason: Location: High Court of Judicature at Allahabad

Mukesh v. State of U.P.

Case brief

What is this about?

What did the court decide?

Mukesh v. State of U.P.

Case brief

What is this about?

What did the court decide?

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