The Allahabad High Court has granted conditional bail to the accused of murder and robbery.
A Single Bench of Justice Rajeev Misra passed this order while hearing a Criminal Misc Bail Application filed by Vipul Sarkar.
These applications for bail have been filed by applicants Vipul Sarkar, Rakesh Dhali and Shivam Rastogi seeking their enlargement on bail in Case under Sections 302, 394 I.P.C, P.S Bahedi, District-Bareilly during the pendency of trial.
Record shows that an F.I.R dated 2.2.2022 was lodged by first informant Manoj Kumar and was registered as Case under sections 302, 394 IPC, P.S Bahedi, District- Bareilly. In the aforesaid F.I.R unknown persons have been arraigned as accused.
The prosecution story as unfolded in the F.I.R is to the effect that Vinay Kumar elder brother of the first informant resided in a house alone situated in Mohalla-Ram Leela near Durga Gali around Agrawal Dharamshala.
The F.IR further stated that the first informant received information from Rinku Rastogi a neighbour of Vinay Kumar that the door of the house in which the brother of the first informant resides is open and no sound of the brother of the first informant can be heard. As such, an inquiry will be made.
Consequently the first informant made a call on the mobile phone of his elder brother Vinay Kumar but the same was reported to be switched off. Rakesh Kumar also made a phone call to Rinku Rastogi and when he reached the house of the elder brother of the first informant namely Vinay Kumar, he was found lying dead. Thereafter, neighbours were collected. Family members of the first informant reached the place of occurrence and found that the Almirah was broken. The jewellery belonging to the wife of the first informant which included three necklaces, eight bungles, five rings, two chains and other mortgaged goods were also missing. Apart from above, the F.I.R further alleges that cash Rs 4,30,000/- was also looted.
After the aforementioned F.I.R was lodged, the Investigating Officer proceeded with statutory investigation of the concerned case crime number in terms of chapter XII CrPC. He immediately reached the place of occurrence and recovered the dead body of the deceased.
The Court observed that,
Having heard the Senior Counsel for applicant-Vipul Sarkar, the counsel for applicants-Rakesh Dhali and Shivam Rastogi, the A.G.A for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that the case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, the complicity of an accused in a case based on circumstantial evidence can be inferred only in accordance with the parameters laid down by the Apex Court in Sarad Birdhichand Sarda (Supra), however, the parameters laid down in aforementioned judgment are not satisfied against the accused-applicants up to this stage, in a case based on circumstantial evidence, motive plays an important role, however, as per the material collected by the Investigating Officer up to this stage, it cannot be said that strong motive has emerged against applicants for committing the crime in question, in fact, the motive behind the occurrence is shrouded in obscurity, the complicity of the applicants in the crime in question is sought to be emphatically alleged on the basis of the following incriminating circumstances, which have emerged against the applicants during the course of investigation- (a) the recovery of mobile phone of the deceased on the pointing of charge sheeted accused, (b) the presence of the applicants in the vicinity of the place of occurrence as per the CCTV footage, (c) the false statement made by accused, Shivam Rastogi, before Investigating Officer in his statement under Section 161 Cr.P.C inasmuch as, accused Shivam Rastogi, in his aforesaid statement stated before the Investigating Officer that after visiting his sister Pooja Rastogi wife of Yogesh Rastogi, who resides in the vicinity of the place of occurrence, he had gone to Bareilly to attend the function regarding marriage anniversary of the son of his Tai, Munni Devi, the same was found to be false as the location of the mobile phone of this accused was found near his home situate at village Mudiya Nabi Baksh, the recovery of Rs 1,15,000/- from the accused, the recovery of yellow metal and certain goods of yellow metal, even if taken together do not complete the chain of events nor do they leave to the conclusion that except for the guilt of accused no other hypothesis is possible, inasmuch as, the recovery made from the applicants could neither be established nor identified as belonging to others, the prosecution story in the FIR that jewellery belonging to the wife of first informant was stolen could not be established to the effect that the stolen goods belong to the wife of first informant, the medical evidence does not support the prosecution story, inasmuch as, the suspicious circumstance at the house of deceased was noticed by Rinku Rastogi at around 00:35 hours on 17.02.2022; however, as per the opinion of the autopsy surgeon, death of deceased had occurred half day before (the post mortem of deceased commenced on 17.02.2022 at 12:00 noon); in the opinion of the autopsy surgeon, the cause of death of deceaed is said to be asphyxia as a result of ante-moretm throttling however, as per the post mortem report the hyoid bone was fractured and there was ligature mark on the neck of the deceased, which prima facie suggest that no throttling was committed upon the deceased.
“Apart from above, simply on the basis of CCTV footage, the complicity of applicants cannot be inferred inasmuch as, the ingress and egress of the accused from the lane, where the house of deceased is situate is at 12:13:14 (entry) & 12:53:10 (exit), which admittedly is much before the time, when aforementioned adverse circumstance existing at the house of deceased was detected by the neighbour of deceased namely Rinku Rastogi, the clean antecedents of applicants, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet in spite of above, the A.G.A could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs State of Maharashtra, therefore, irrespective of the objections raised by the A.G.A and the counsel for first informant in opposition to the applications for bail, but without making any comments on the merits of the case, applicants have made out a case for bail”, the Court further observed while allowing the bail application.
The Court ordered that let the applicants-Vipul Sarkar, Rakesh Dhali and Shivam Rastogi, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.