Diwakar Dubey Vs State of U.P. Thru. Prin. Secy. Home Lko.

Neutral Citation No. - 2025:AHC-LKO:24687

Court No. - 18

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2897 of 2025

Applicant :- Diwakar Dubey Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava,Avinash Srivastava,Pragat Garg

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Hon'ble Karunesh Singh Pawar,J.

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Heard Sri Ramakar Shukla, learned counsel for the applicant, learned counsel for the complainant and learned A.G.A. for the State as well as perused the record.

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This is the fourth bail application. The first bail application of the applicant bearing Bail No.14653 of 2023 was dismissed by this court vide order dated 19.01.2024, the relevant part of the order is extracted below:-

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"2.It is alleged in the first information report that brother of the informant Dharmendra Maurya was taken by the applicant Diwakar Dubey at 4.00p.m. from his home and brought him dead at 9.30 on E-rickshaw, threw him in front of the house and ran away. Neighbour of the informant told him, then the informant went near the dead body of his brother. By that time, Diwakar Dubey has gone far of. The body of the brother of the informant turned black. Foam was oozing from his mouth. He was taken to District Hospital, Pratapgarh where he was declared dead.

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3.Learned counsel for the applicant submits that the co-accused Pinku Pattharkat who was assigned similar role has been granted bail by the Sessions Judge, Pratapgarh vide order dated 17.11.2023. He claims parity with the bail order of Pinku.

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4.Learned A.G.A. has opposed the contention and submitted that it is not a case of parity. Informant is the witness of inquest and inquest witnesses opined that the deceased died due to excessive drink provided by the applicant and intoxication by

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smack.

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In the post mortem report, in the stomach, brown blackish liquid material was found present and the stomach wall was congested. Cause of death could not be ascertained and viscera was preserved for chemical analysis. In the viscera report, ethyl alcohol and aluminum phosphide poison was found.

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It is submitted that the prosecution witness Suman who is the neighbour of the deceased has given statement that the applicant was taking out the deceased in front of her house in an unconscious state. Upon a query being made regarding his condition, no reply was given by Diwakar Dubey and he ran away. She found that the deceased was oozing foam from his mouth. Then she informed the informant.

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It is further submitted that the other eye-witnesses Rajendra Kumar Yadav and Abhishek Singh have given the same statement and have confirmed the statement given by Suman. The statement of eye witnesses and Suman are corroborated by the viscera report where ethyl alcohol and aluminum phosphide poison has been found. It is a case of circumstantial evidence. The chain of evidence appears to be complete.

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5.Considering the facts and circumstances of the case, the fact that Viscera report corroborates the prosecution story and the statement of the witnesses, gravity of the offence and the argument advanced, prima facie complicity of the applicant is evident, from the material on record."

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Thereafter, second and third bail applications were also rejected.

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The present bail application has been filed by accusedapplicant seeking bail in Case Crime No.196 of 2023 under sections 302, 394 I.P.C., P.S. Kotwali Nagar, district Pratapgarh.

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Learned counsel for applicant submits that he is pressing this bail application on the following fresh grounds:-

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"(i) Applicant is languishing in jail since 08.09.2023 however, except one trivial offence i.e. Case Crime No.745/2018, under Sections 147, 323, 504, 506, 452 IPC, P.S. Kotwali Nagar, District Pratapgarh there is no other criminal history of the

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applicant.

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(ii) During course of the investigation, P.W.1 to P.W.6 have been examined. Examination of P.W.7 is going on thus, the fact witnesses have already been examined.

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(iii) As per the prosecution case, Suman was the last seen and material witness however, Suman has been withheld by the prosecution and has not been produced before the trial court although P.W.1 while giving statement before the court has stated that Suman informed him about the incident and has given the last seen evidence."

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Learned counsel for the applicant further submits that case is of circumstantial evidence. Trial is not likely to be concluded in near future as some formal witnesses are yet to be examined and thereafter, defence has to lead its evidence after the statements under Section 313 Cr.P.C.

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Even otherwise, once the material witnesses of fact have been examined, no purpose would be served in keeping the applicant behind the bars. In support of his contention he has relied on the judgment of Hon'ble Apex Court in Gokarakonda Naga Saibaba vs. State of Maharashtra reported in [2018 (12) SCC 505]. He has further relied on the judgment passed by Hon'ble Apex Court in Javed Gulam Nabi Shaikh vs. State of Maharashtra and another : Criminal Appeal No.2787 of 2024.

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8. Per contra, learned counsel appearing for the complainant has opposed the contention and has submitted that Rajendra and Abhishek have supported the prosecution case in their statement before the court to which learned counsel for the applicant submits that Rajendra during cross has denied his statement given under Section 161 Cr.P.C. He submits that both Rajendra and Abhishek have given the statement under Section 161 Cr.P.C. after 83 days i.e. on 22.06.2023 whereas the incident is of 28.03.2023 thus, the evidence of these two witnesses are not credible.

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He has further submitted that while rejecting the first bail application, trial court was directed to conclude the trial within a period of two years however, two years have not yet come to an end and therefore, the applicant if released on bail shall tamper the evidence.

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Learned A.G.A. has also opposed the bail prayer.

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On due consideration to the submissions advanced, perusal of the record as also the fact that admittedly the fact witnesses have been examined and even one formal witness has also been examined, examination of Investigating Officer appears to be going on thus, there appears to be no possibility of tampering the evidence, case is of circumstantial evidence and key witness Suman has not been produced by the prosecution, the petitioner has no criminal history except one trivial offence however, he is languishing in jail since 08.09.2023, release of the applicant is not likely to affect the trial so also the judgements passed by Hon'ble Apex Court in Gokarakonda Naga Saibaba (supra) & Javed Gulam Nabi Shaikh (supra) , without expressing any opinion on merits of the case, I find it to be a fit case for enlarging the applicant on bail.

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Accordingly, the bail application is allowed .

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Let the applicant Diwakar Dubey be released on bail in aforesaid case crime number subject to his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:

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(i) The applicant will not tamper with the evidence during the trial.

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(ii) The applicant will not pressurize/ intimidate the prosecution witness.

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(iii) 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 officer or tamper with the evidence.

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(iv) 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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(v) 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 of the Indian Penal Code.

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(vi) 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 of the Indian Penal Code.

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Order Date :- 29.4.2025 Saurabh Yadav/-

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Digitally signed by :- SAURABH YADAV High Court of Judicature at Allahabad, Lucknow Bench

Diwakar Dubey v. State of U.P. Thru. Prin. Secy. Home Lko.

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