Dayaram vs State Of Uttar Pradesh

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

The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.47 of 2020, under Sections 302 and 201 of I.P.C., Police Station-Ghazipur, District-Fatehpur after rejection of his Bail Application vide order dated 21.1.2021 passed by learned Sessions Judge, Fatehpur.

Learned counsel for the applicant submits that initially an F.I.R. was lodged under Sections 279 and 304-A I.P.C. on 08.3.2020 against unknown persons by the alleged wife of the deceased (now one of the accused) that her husband has died due to accident on 05.3.2020. In the post mortem report, it was opined that the cause of death was due to ante mortem strangulation. Later on, during investigation, it was revealed that informant (Smt. Sumerkali) who along with the present applicant (son of Smt. Sumerkali) have caused death of the deceased. It is further submitted that the disclosure of the name of the applicant was in the second statement of the co-accused on 07.12.2020 (i.e. after a period of 9 months) and the co-accused Smt. Sumerkali has been granted bail by this Court vide order dated 23.3.2021 passed in Criminal Misc. Bail Application No.48752 of 2020. The alleged recovery was a planted one, there is no independent witness to the said recovery, the applicant has no other reported criminal antecedent and he is languishing in jail since 03.12.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.

Learned A.G.A. has vehemently opposed the bail application and submits that there is a motive for the applicant and his mother to cause death of the deceased who was allegedly the husband of the co-accused Smt. Sumerkali as she wanted to dispose of the property belonging to the deceased. However, he has not disputed that the co-accused Smt. Sumerkali has been granted bail by this Court.

Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns the liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the accused, the gravity of the allegations, position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered while considering application for bail. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the cases involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, Criminal Appeal No.329 of 2021, decided on 18.3.2021 in this regard.

Considering the rival submission, material available on record, the period of detention already undergone, the unlikelihood of early conclusion of trial, absence of any convincing material to indicate the possibility of tampering with the evidence, relevant factors mentioned above, particularly that the name of the applicant was disclosed in the second statement of co-accused after a period of about 9 months, co-accused Smt. Sumerkali has been granted bail by this Court, evidence against the applicant is in the nature of circumstantial evidence, applicant is languishing in jail since 03.12.2020 having no criminal history, the applicant is entitled to be released on bail in this case.

Let the applicant Dayaram, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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

(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.

(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.

(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 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.

(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 229-A IPC.

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

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.

The bail application is allowed.

The observations made hereinabove are only for the purpose of adjudicating the present bail application.