Allahabad High Court rejects bail application, observing evidence by hostile witnesses impermissible

The Allahabad High Court has rejected the bail application observing that if any opinion is taken on the basis of the evidence given by the hostile witnesses, it amounts to evaluating the evidence by the Court, which is impermissible while deciding the bail application under Section 439 CrPC.

A Single Bench of Justice Shekhar Kumar Yadav passed this order while hearing a Criminal Misc Bail Application filed by Krishna Kant.

This is the second bail application moved on behalf of the applicant. The first bail application of the applicant was heard and rejected by the Court order dated 21.11.2019.

The second bail application has been filed on the new ground that two of the witnesses of last seen, namely, Om Prakash and Ramesh Chandra have been examined before the Trial Court but they have not supported the prosecution case and they have been declared hostile.

It is further submitted that informant Madan has also been examined, who has also not supported the case before the Trial Court and there is remote possibility of conviction and also there is no likelihood of earlier conclusion of the trial, hence the applicant may be released on bail on these grounds.

That initially occurrence is said to have taken place on 1.6.2018 and the FIR was lodged by informant, namely, Madan on 2.6.2018 at 16.18 p.m bearing Case under Section 302 IPC at P.S Goverdhan, District Mathura alleging therein that on 1.6.2018 at about 8.00 p.m in the night, the applicant and co accused Anil Badela took along with them, son of informant, namely, Govind for collection of parking ‘Theka’.

It is alleged that on 2.6.2018 at about 8.30 a.m in the morning, the police informed that the dead body of his son was found near Sankhi Nagla. The body of his son was sent for postmortem and suspicion was raised upon the applicant and co accused Anil @ Badela that they killed the son of the informant.

During the investigation, the Investigating Officer recorded the statement of the informant and other witnesses under Section 161 CrPC.

During the course of investigation, the Investigating Officer converted the case under Section 302 IPC to Sections 279, 304-A, 427 IPC on 18.07.2018 on the basis of the report of State Medico Legal Cell, Lucknow. Thereafter again on 15.12.2018 the case was converted to Section 304-A, 427 IPC and after the investigation was over, a charge sheet was submitted under Section 302 IPC against the applicant and co accused.

Counsel for the applicant submitted that the FIR of the case was lodged by the informant in regard to murder of his son by the named accused persons.

It is further contended that the applicant has been falsely implicated in the case. There is no eye witness account of the incident. There is delay in lodging of the FIR and nobody had seen the applicant committing the offence.

It is alleged that the deceased was last seen with the applicant and co-accused persons but only on that basis it cannot be said that the applicant murdered the deceased.

Counsel for the applicant further submitted that the applicant is innocent and has been falsely implicated in the case on the basis of suspicion and there is no motive assigned to the applicant by the prosecution. Nothing incriminating article has been recovered on the confessional statement and pointing out of the applicant. The applicant has been languishing in jail since 05.10.2019.

Counsel for the State as well as counsel for the informant opposed the prayer and submitted that sufficient evidence is available on record to connect the applicant with the crime.

It is further contended that the prosecution case is based on circumstantial evidence.

It is further submitted that on 01.06.2018 at about 8 p.m in the night the deceased accompanied to all the two accused persons including the applicant and this last seen evidence is of the informant and other witnesses, who have stated in their statements under Section 161 CrPC that they have seen the deceased accompanying the accused persons.

Thereafter, till late night, his son did not return and on the next morning, the dead body was recovered. The time gap between the last scene of the deceased with the accused-applicant and the recovery of the dead body was so less that it was the applicant and co accused, who were to explain, what happened with the deceased and how his death was committed? Hence, in these circumstances, the applicant is not entitled to be released on bail. It is further submitted that the trial is going on and the same be expedited.

The main ground urged by the counsel for the applicant is that two witnesses of last seen have turned hostile and the applicant is in jail for more than three years. Even if all the witnesses are examined, the possibility of the case ending in conviction of the applicant is very remote and, therefore, the applicant may be enlarged on bail.

On the other hand, submission of the AGA is that though two of the witnesses of last seen have turned hostile and the informant has also not supported the case of the prosecution, the trial court would be at liberty to take a view whether to convict the accused or not based on the other evidence given by other witnesses during trial. Hostility of the witnesses cannot be a new ground for granting bail to accused applicants. If any opinion is taken on the basis of the evidence given by the hostile witnesses, it amounts to evaluating the evidence by this Court, which is impermissible while deciding the bail application under Section 439 CrPC. It is a well settled principle that a trial court can record conviction based on the evidence of the Investigating Officer also. Therefore, the ground urged now cannot be considered for granting bail to the accused applicant.

“It is alleged that the applicant and other co-accused were last seen with the deceased on the fateful night. So, considering the facts and circumstances of the case, and looking at the nature and severity of allegations, without commenting on merits of the case, at this stage, the Court does not find it to be a fit case for grant of bail”, the Court observed while rejecting the bail application.

The Court further observed that the applicant is in custody and the trial is still going on, therefore, the trial Court can only be directed to expedite the trial.

As such, the High Court directed the trial Court to expedite the trial and dispose of the same as early as possible.

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