The main legal point established in the judgment is the presumption of innocence and the need to secure the presence of the accused during trial when considering a bail application.

JUDGMENT

Vikas Mahajan, J.

1. This is a petition filed by the petitioner under Section 439 CrPC seeking regular bail in FIR No. 0074/2020 under Sections 302/34 IPC registered at Police Station Ghazipur. Section 120B against the petitioner was later on added in the charge-sheet.

2. Vide order dated 02.05.2023, notice was issued in the bail application and the State was directed to file a Status Report.

3. The State has filed the Status Report dated 20.07.2023 which is on record.

4. The case of the prosecution is that deceased Raj Kumar used to provide home tuitions to one woman named Jyoti. The husband of Jyoti namely Sachin had seen Raj Kumar with Jyoti and thereafter he picked a quarrel with the deceased many times. On 09.03.2020, the deceased was called by Jyoti to Flat No. 313 Ashirwad Apartment, where the co-accused Vijay was also present inside the flat. When the deceased entered the flat, the husband of Jyoti i.e. Sachin along with Akash (petitioner herein) also reached there and they all brutally beat up the deceased. They also made videos from their mobile phones. After the beating, they took the deceased Raj Kumar in Sachin's car and dumped him on the other side of the main gate of Ashirwad Apartment from where witness Deepak took him to the hospital.

5. On the basis of a complaint made by the brother of the deceased, the FIR was registered and the co-accused namely Jyoti, her husband Sachin and Vijay were arrested and the charge sheet was filed against them under Sections 302/120B/34 IPC. Subsequently, the petitioner/Akash Kumar was arrested from his native place in District Farukkhabad (U.P) on 28.08.2020.

6. The learned counsel for the petitioner invites the attention of the Court to the disclosure statement of the main accused Sachin to contend that in his disclosure statement Sachin has stated that the petitioner/Akash left from the flat in Ashirwad Apartment i.e., the place of incident and even thereafter, Sachin and Vijay continued to beat the deceased Raj Kumar. He contends that as per the disclosure statement of Sachin, the deceased became unconscious around 10:00 p.m and the petitioner had left much prior to that.

7. Referring to the Status Report filed by the State, he submits that it is the case of the prosecution that the petitioner was at Ashirwad Apartment till 20:29 hours and then he left for Anand Vihar to depart for his village to celebrate the Holi festival. He submits that the Status Report shows that Akash was earlier at Nehru Place and it is only between 18:27 and 20:29 hours that his location has been traced near Ashirwad Apartment, whereas, as per the disclosure statement of co-accused Sachin, he alongwith Vijay had given beating to deceased Raj Kumar till 10:00 p.m. Elaborating further, he submits that as per the version of prosecution, the petitioner had left at least 1 = hours prior to the deceased becoming unconscious on account of beatings given by co-accused Sachin and Vijay.

8. Drawing the attention of the Court to the Seizure Memo, as well as, to the Status Report, he contends that the key of the flat in question was seized by the police from co-accused Sachin Kumar which goes to show that the flat where the incident is alleged to have taken place was under the lock and key of co-accused Sachin Kumar. He submits that the case of the prosecution is that the petitioner was the tenant of the said flat and even if it is assumed that the petitioner was the tenant, the Seizure Memo and the Status Report shows that the petitioner had left for his native place at 20:29 hours and thereafter, the flat was in possession of the co-accused Sachin as key of the flat was seized from him.

9. He submits that no motive can be attributed to the present petitioner, in as much as, it was the wife of Sachin i.e., co-accused Jyoti who was provided home tuition by the deceased and it was her husband i.e. co accused Sachin who was having an objection to the deceased calling and meeting his wife.

10. He