Gayasuddin @ Gausuzzaman @ Gausu and Others vs State of U.P.

Alok K. Singh, J.—Learned private Counsel for the complainant points out that on behalf of applicant No. 3, Asghar Ali there is one more notice No. 4781 of 2008. In reply to this learned Counsel for the applicant says that he does not want to press the bail application of applicant No. 3, Asghar Ali. Accordingly the application for bail on behalf of applicant No. 3 is dismissed as not pressed.

In view of the above, the Court proceeded to consider the bail application in respect of remaining three applicants i.e. applicants Nos. 1, 2 and 4 namely Gayasuddin @ Gausuzzaman @ Gausu, Afroz Zaman and Kalam respectively.

Heard the learned Counsel for the applicants, learned A.G.A. assisted by learned private Counsel for the complainant and perused record.

The applicants are involved in Case Crime No. 117 of 2008, under Sections 302, 201/34 I.P.C., Police Station Baldirai, District Sultanpur.

It is submitted on behalf of the applicants that the entire case is based on a very weak type of circumstantial evidence. There is no direct evidence in respect of alleged killing. The report was lodged when the dead body was found in the morning. The complicity of the applicant is said to be based on the statements of Vindhya Prasad Yadav whose statement has been brought on record (Annexure-7). According to him at about 10.00 p.m. he had seen all the accused standing and talking together. When he inquired from him they said there is nothing and they are waiting for some persons. Then after sometime when he reached near his tubewell then he heard some shrieks and he rushed near the spot but did not find any of them. Thereafter he returned to his tubewell which was at a distance of about 200 meters. The dead body was found on the next day around 12.00 noon by the side of the road in an agricultural field. It appeared that death was caused by some cutting weapon. In the site plan the place where the applicants were seen standing and talking with each other has not been shown. Learned Counsel submits that when this witness allegedly saw the applicants at that time no cutting weapon or any other weapons were seen in their hands. The incident is of the month of April at about 10.00 p.m. it was not so late. In these circumstances it is not ascertainable as to why this witness inquired from the applicants reason for their standing at the alleged place. Learned private Counsel points out that two knives have also been recovered from the possession of the applicant No. 1 and 4. In reply to this learned Counsel for the applicant submits that the said recovery is after about a week from an open field and Nala in respect of which there is no public witness. They are said to be in jail for the last more than four months. There is no criminal history against them.

The bail is, however, opposed by the learned A.G.A. assisted by learned private Counsel for the complainant.

The points pertaining to nature of accusation, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered.

In view of the aforesaid facts and circumstances and without entering into the merits of the case and particularly having regard to the fact that the entire case is based on a very weak type of circumstantial evidence, I find it to be a fit case for granting bail on heavy sureties.

Let the applicants (Gayasuddin @ Gausuzzaman @ Gausu, Afroz Zaman and Kalam) be enlarged on bail on their furnishing personal bonds of Rs. 40,000/- and two sureties each in the like amount to the satisfaction of the Magistrate/court concerned.

It is further provided that if the applicants do not cooperate with the trial or absent themselves without any sufficient cause the court below can cancel their bail.