Kapil Vs State of U.P.

Court No. - 75

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47662 of 2022

Applicant :- Kapil Opposite Party :- State of U.P. Counsel for Applicant :- Jagdev Singh,Chandra Bhusan Kushwaha Counsel for Opposite Party :- G.A.

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Hon'ble Sanjay Kumar Singh,J.

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Heard learned counsel for the applicant as well as learned Additional Government Advocate representing the State

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The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 407 of 2022, under Sections 302, 201/34 of I.P.C., Police Station- Hasanpur, District- Amroha, during the pendency of trial.

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As per the prosecution case in brief, informantAkash, who is son of deceased- Subhash, lodged an F.I.R. on 18.08.2022 at 03.52 PM, against Yogesh and Chaman, with the allegations inter-alia that on 16.08.2022, at about 4 PM, some altercation took place amongst his father Subhash, Shiv Charan and Yogesh and at that time, Chaman, who is brother-inlaw of Yogesh was also present there. Thereafter, his father has been missing and his dead-body was found on 18.08.2022 near Mango Orchard, situated at Haibatpur Road.

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It is argued by learned counsel for the applicant that it is admitted case of the prosecution that deceased has been missing since 16.08.2022, but no missing report was lodged by the informant who is son of the deceased. He next submitted that there is no eyewitness of the incident. The applicant has been falsely implicated in this case and he is not named in the F.I.R. There was no motive against the present applicant. He also pointed out that Police, in order to falsely implicate the applicant, has recorded the statement of one Subhash and Jasram on 29.08.2022, after ten days of lodging F.I.R., wherein they have stated inter-alia that they have seen the

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deceased in the company of named accused persons on 18.08.2022 at about 8-8.30 PM along with two others who were going towards Jhakdi Road. Thereafter, co-accused Yogesh and Chaman were apprehended by the Police on 20.08.2022 and Police falsely recorded their confessional statements in which, as per prosecution case, they have disclosed the modus-operandi adopted by them along with Manoj and present applicant Kapil, in committing murder of the deceased by strangulation. He further pointed out that as per confessional statement of the co-accused- Yogesh and Chaman, the applicant Kapil and Manoj caught hold the hand and leg of the deceased and the named accused Yogesh and Chaman strangled him. It is also submitted that coaccused Manoj has been granted bail by the coordinate Bench of this Court, vide order dated 30.01.2023, in Criminal Misc. Bail Application No. 55147 of 2022. The applicant is languishing in jail since 20.08.2022.

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Per contra , learned A.G.A. for the State opposed the prayer for bail of the applicant but could not dispute the above factual aspect of the matter as argued on behalf of the applicant.

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Having heard learned counsel for the parties and examined the matter in its entirety, I find that the deceased was missing since 16.08.2022 and his dead-body was recovered on 18.08.2022, but during this period, no missing report was lodged by the informant. There is no eye-witness of the incident and except the last seen evidence as well as confessional statement as noted above, there is no direct evidence against the applicant. I also find that post-mortem of the dead body of the deceased was conducted on 19.08.2022 at 11.10 AM, in which time since death was found to be about two to two and a half days old, which do not match with the last seen evidence given by Subhash and Jasram because according to them they have seen the deceased on 18.08.2022 at about 8-8.30 o'clock in night.

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Considering the facts and circumstances of the case as well as keeping in view the nature of the offence,

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evidence, complicity of the accused and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed .

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Let the applicant- Kapil , 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

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(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police ofÏcer or tamper with the evidence.

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(iii) That after his release, the applicant shall not involve in any criminal activity.

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(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.

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

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Order Date :- 21.3.2023 Kashifa

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Digitally signed by :- KASHIFA High Court of Judicature at Allahabad

Kapil v. State of U.P.

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Kapil v. State of U.P.

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