The Allahabad High Court has allowed the bail application of Golu Panda, a murder accused in Muthiganj police station, Prayagraj limits.
A single-judge bench of Justice Rajeev Misra passed this order while hearing a Criminal Misc Bail Application filed by Golu Mishra @ Golu Panda.
The application for bail has been filed by the applicant seeking his enlargement on bail in case under sections 302, 201, 120-B IPC, Police Station Muthiganj, District Prayagraj, during the pendency of trial.
The Court noted,
Record shows that in respect of an incident which is alleged to have occurred on 23.1.2022, a delayed FIR dated 24.1.2022 was lodged by first informant Rajat Jaiswal and was registered as Case under Section 302 IPC, Police Station Muthiganj, District Prayagraj.
In the aforesaid FIR, four persons namely Himansu Panda, Kallu Panda, Golu Panda and Salman have been nominated as named accused.
The gravamen of the allegations made in the FIR is to the effect that on 23.1.2022, named accused came to the house of the deceased/ first informant and thereafter took the deceased in their accompany. However, subsequently, it was discovered that the brother of the first informant had been put to death. The FIR concludes with the recital that 15 days prior to the lodging of the FIR, a scuffle had taken place between the deceased and the named accused.
After lodging of aforesaid FIR, the Investigating Officer proceeded with the statutory investigation of concerned case crime in terms of Chapter XII CrPC. He recovered the dead body of the deceased. Thereafter, the inquest (panchayatnama) of the deceased was conducted. In the opinion of the witnesses of the inquest (panch witnesses), the cause of death of the deceased was not on account of any injury apparent on the body of the deceased, but some other reason. Thereafter, a post-mortem of the body of the deceased was conducted.
In the opinion of the autopsy surgeon, the cause of death of the deceased was ante-mortem strangulation.
During the course of investigation, the Investigation Officer examined various witnesses including Sharad Jaiswal and Vishnu Jaiswal; As per the statements of Sharad Jaiswal and Vishnu Jaiswal, the evidence of last seen is alleged to have emerged against applicant.
On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of named accused and one not named accused Seema is established in the crime in question.
He, accordingly, submitted the charge-sheet on 19.4.2022, whereby the name accused have been charge-sheeted under Sections 302, 201 and 120-B IPC. However, charge-sheeted accused Seema was found to be a juvenile, therefore, a separate report in respect of her has been submitted before the Juvenile Justice Board concerned.
The counsel for the applicant submitted that though the applicant is named as well as charge-sheeted, he is innocent. Present case is a case of circumstantial evidence and, therefore, there is no eye-witness of the occurrence.
In view of the above, the complicity of applicant in the crime in question has to be judged in the light of parameters laid down by Apex Court for deciding the complicity of an accused in a case based upon circumstantial evidence in Sharad Birdhichand Sarda Vs State of Maharashtra AIR 1984 SC 1622.
With reference to above, counsel for applicant submits that none of the parameters which are necessarily required to be proved and established are not satisfied against applicant upto this stage.
It is next contended that no recovery has been made on the pointing out or from the person of applicant. No strong motive has emerged against the applicant for committing the crime in question either.
With reference to the FIR, counsel for applicant submitted that it is the admitted case of the prosecution that 15 days prior to the lodging of the FIR, the deceased had scuffle with the named accused.
In the aforesaid circumstance, the recital contained in the FIR that the named accused had come to the house of the applicant and the deceased accompanied them appears to be not only doubtful but improbable. The incriminating circumstances that have emerged against the applicant during the course of investigation are not in proximity to time and manner of occurrence which may point at the guilt of the applicant and no other hypothesis. The statements of the two witnesses namely Vishnu Jaiswal and Sharad Jaiswal appear to be tutored in as much as the content and the texture, of both the statements are the same.
It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant has been in jail since 28.1.2022. As such, he has undergone almost one year of incarceration. Charge-sheet having been submitted, therefore, evidence sought to be relied upon by prosecution against applicant stands crystallized, and therefore, custodial arrest of applicant not being necessary during the course of trial.
It is, thus, strenuously urged that the applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail he shall not misuse the liberty of bail and shall cooperate with the trial.
Per contra, the AGA has opposed the application for bail. He submitted that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by the Court. However, he could not dislodge the factual/legal submission urged by counsel for the applicant, at this stage.
“Having heard the counsel for applicant, the AGA for State, upon perusal of material brought on record, as well as complicity of applicant, accusations made coupled with the fact that the case is a case of circumstantial evidence, therefore, there is no eye-witness of the occurrence, the recital contained in the FIR, prima facie, appeared to be contradictory to each other, the improbable character of the prosecution story that even though the deceased had scuffle with named accused and yet he accompanied them after 15 days of the occurrence; there being no recovery on the pointing out or from the person of applicant, the incriminating circumstance regarding last seen which has emerged in the statements of the witnesses namely Sharad Jaiswal and Vishnu Jaiswal does not inspire confidence, in view of the similarity in the content and texture of the statements, applicant being man of clean antecedents, but without making any comments on the merits of the case, applicant has made out a case for bail,” the Court observed while allowing the application.
The Court ordered,
Let the applicant, Golu Mishra alias Golu Panda, be released on bail in the aforesaid case crime number on therein furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(1) 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.
(2) 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;
(3) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 CrPC is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
(4) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 CrPC; and
(5) 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 a default as abuse of liberty of bail and proceed against him in accordance with law.