Ashok Kumar vs State of U.P.

Kalimullah Khan, J.—Heard learned counsel for the applicant, learned A.G.A. on the second ball application made by accused Ashok Kumar and perused the record. The first bail application of the applicant has already been rejected by this Bench vide order dated 9.8.2012 wherein it was made clear that without expressing any opinion on the merit of the case the bail application was rejected in view of the fact that the abductees had not been recovered.

While pressing this second bail application learned counsel for the applicant has contended that true it is that abductee has yet not been recovered, but the implication of the applicant is false and he intends to substantiate his contention by the evidence collected by the Investigating Officer during investigation wherein charge-sheet has now been submitted. He has argued that all the prosecution witnesses on the basis of whose belated statement initially recorded by the Investigating Officer the name of the applicant came to light as one of the perpetrator into the crime have been belied by their subsequent interrogation by the Investigating Officer. All the prosecution witnesses including Kashmir Singh the real brother of the first Informant, Dharamvir Singh, Satyavir Singh and Mohar Singh had earlier stated to Investigating Officer that they had seen the abductee Viresh aged about 17-18 years son of first informant in the company of accused applicant and others but they took somersault during their subsequent interrogation by Investigating Officer and all these prosecution witnesses including Kashmir Singh have stated that they had not last seen the abductee in the company of the applicant and others as a result of which vide CD. Parcha No. 23/12 Investigating Officer had apprised his superior officer that the implication of the applicant in the alleged crime is not substantiated by the evidence of prosecution witnesses and all the prosecution witnesses are interested witnesses, but none of them have seen abductee Viresh in the company of applicant and others.

Learned A.G.A. has opposed the ball and he has submitted that the incident was committed on 26.10.2011. A gumsudgi report was lodged by Ranvir father of the abductee on 28.10.2011 and that prosecution witness Kashmir Singh brother of the informant stated to Investigating Officer on 21.12.2011 that he had seen abductee Viresh in the company of the applicant and other co-accused. The aforesaid Gumsudgi report was converted u/s 364, I.P.C. Affidavits on behalf of Dharamvir Singh, Satyavir Singh and Mohar Singh, all the prosecution witnesses were filed to Circle officer wherein they deposed that they had seen the victim and accused persons near Bhogaon Bus Stand. During the course of investigation the cycle and Peepa (milk container) were found near Shiv Beauty Parlour Street Bhogaon Mainpuri on 4.12.2011. In this view of the matter, there is only last seen evidence against the applicant, but he has not denied the fact that number of Investigating Officer have been changed in this case and on a subsequent interrogation of the aforesaid prosecution witnesses Dharamvir Singh, Rajendra Singh and Mohar Singh, they did not support the prosecution story.

There appears substance in the contention of the learned counsel for the applicant that if Kashmir Singh real uncle of the victim had seen him in the company of accused persons on 26.10.2011 and it was known to all concerned thereafter that the victim is missing then within all human probabilities he would have disclosed this fact of last seen evidence to his real brother informant prior to lodging of the F.I.R. on 28.10.2011. Similarly, remaining prosecution witnesses aforesaid would have disclosed the aforesaid facts to the informant being his near and dear relatives and in that eventuality the name of the applicant would have come to light in the gumsudgi report itself, but the applicant was not named in the F.I.R. and his name came to light during the investigation at a highly belated stage.

Considering the aforesaid facts and circumstances of the case and the nature of evidence collected by the Investigating Officer referred to above, where only last seen evidence uncorroborated by any other incriminating circumstance was there and that too have subsequently been denied by the concerned prosecution witnesses who are deeply interested in the prosecution, the applicant deserves bail irrespective of the fact that victim has not been recovered so far especially the applicant is in jail since 4.2.2012 yet the victim has not been recovered.

No useful purpose will be served by keeping the applicant in jail any more. Investigation is over, charge-sheet has been submitted and there is no chance of tampering with the evidence of prosecution at the instance of the applicant in case he is released on bail. Second bail application stands allowed. Let the applicant Ashok Kumar, involved in Case Crime No. 840 of 2011 under Sections 364 and 201, I.P.C. Police Station Bhogaon, District Mainpuri be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned.