RAJENDRA TEWARI Vs. STATE OF U P

JUDGEMENT

(1.) COUNTER and rejoinder affidavits filed today are taken on record. Heard the learned counsel for the applicant, learned A.G.A. and perused record. The applicant is involved in Case Crime No.342 of 2008, under Sections 328, 302 I.P.C., Police Station Payagpur, District Bahraich. It is submitted on behalf of the applicant that the entire prosecution story is patently improbable. According to the prosecution story while the deceased had gone to ease out on 04.08.2008 in the morning about 7.00 a.m. towards the South of the village the applicant came along with his four companions (all named in the F.I.R) and on account of an altercation which had taken place between them, gave poison to the deceased by force which was witnessed by uncle, grand father of the deceased and other villagers. Thereafter he was taken to hospital where he died. The cause of death, however, could not be ascertained due to which viscera was preserved. The post mortem was conducted on 05.08.2008 at 3.30 p.m. The viscera report is still awaited even after an expiry of about seven months. Learned counsel emphasizes that out of five persons named in the F.I.R. the accusations against all of them except the applicant have been found to be baseless and therefore charge-sheet has been submitted only against the applicant. He says that this itself makes the entire prosecution story doubtful. He further adds that it cannot be believed that though the grand father and uncle and other villagers were present on the spot but they neither tried to save the deceased nor tried to grab the applicant. Further it is pointed out that the incident is said to had taken place on 04.08.2008 and on the same day the deceased expired in the hospital but the report was lodged on the next day and that too late in the evening at about 7.45 p.m. while the distance of the police station is only three kilometers and there is no explanation of the delay in lodging of the F.I.R. It is said that in fact the deceased Pavan Kumar was the man of a bad character and about 4-5 days prior to the alleged incident he teased the wife of one Budhai which was opposed by the applicant and an oral complaint was also made by him to father of the deceased. But instead of giving any warning to his son the father of the deceased, Bansh Raj (the first informant) supported the act of his own son. However, the matter was subsided on the interference of the Pradhan of the village. It is further added that the deceased was having a love affair with a girl belonging to the Brahmin family of the village Sachauli but in the year 2007 he was married with a girl of his own Yadav community against his wishes and therefore he was not happy with his matrimonial life. He therefore continued to meet his girlfriend and in the night of 03.08.2008 some quarrel between the deceased and his wife took place and thereafter on 04.08.2008 in the morning it was heard in the village that the deceased had consumed poison. Learned A.G.A., however, points out that two abrasions were also found in the ante mortem injuries. In reply thereof learned counsel for the applicant submits that looking to the size of the abrasions the same appear to be insignificant. Learned counsel for the applicant further submits that after the death of Pavan Kumar, the complainant Bansh Raj Yadav and other family members had a chance to implicate the applicant and some of the family members of Brahmins Community and therefore he lodged a report against the applicant and four other persons as mentionedbefore. It is said that there is no criminal history against him. He is said to be in jail from 06.09.2008. However, the bail is opposed by learned A.G.A. The points pertaining to nature of accusation, danger of accused absconding or fleeing if released on bail, character, behaviour and position of the accused, 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 having regard to some of the submissions as discussed hereinabove, I find it to be a fit case for granting bail on heavy sureties and on some condition. Let the applicant (Rajendra Tewari) be enlarged on bail on his furnishing a personal bond of Rs.40,000/- and two sureties in the like amount to the satisfaction of the Magistrate/court concerned. It is further provided that if the applicant does not cooperate with the trial or absents himself without any sufficient cause the court below can cancel his bail.