Under Section 439 CrPC, prolonged pre-trial custody, lack of direct evidence, and the presumption of innocence support the grant of bail, especially when co-accused have been released.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 439 - Bail application for FIR No. 74/2020 under sections 302/120B/34 IPC - The petitioner was accused of murder and conspiracy following allegations of a premeditated attack on the deceased, motivated by jealousy over an alleged affair. The evidence primarily consists of circumstantial factors, without direct proof of intent to kill. The prosecution's case lacks conclusive evidence linking the petitioner to the crime, leading to doubts regarding the common intention to commit murder. Acknowledging prolonged custody without trial and presumption of innocence, bail was granted. (Paras 1, 6, 12, 22, 46)

Findings of Court:
The petitioner has been in custody since March 2020 and the trial is unlikely to conclude soon due to a large number of witnesses not yet examined. The nature of injuries does not conclusively indicate intent to kill. (Paras 35, 42)

Issues: The intention behind the assault, the circumstantial evidence presented, and the implications of pre-trial custody were key considerations.

Ratio Decidendi: The court emphasized that the delay in trial and presumption of innocence justifies bail under the circumstances.

Result: Petitioner granted regular bail.

JUDGMENT :

VIKAS MAHAJAN, J.

1. The present bail application has been filed under section 439 CrPC seeking regular bail in connection with FIR No. 74/2020 under sections 302/120B/34 IPC registered at PS Ghazipur.

2. Vide order dated 09.10.2023 notice was issued in the bail application and the respondent/State was directed to file a status report. The respondent/State has filed its status report, which forms part of the record.

3. 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 (the present petitioner) had seen Raj Kumar with Jyoti and thereafter he picked 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 petitioner along with Akash 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 the petitioner’s car and dumped him on the other side of the main gate of Ashirwad Apartment from where the witness namely, Deepak took him to the hospital.

4. On the basis of a complaint made by the brother of the deceased, the FIR was registered and the accused persons namely, Jyoti, Vijay, Akash and the present petitioner (Sachin) were arrested.

5. Mr. Jitender Sethi, learned counsel for the petitioner at the outset submits that the petitioner is in custody since 10.03.2020 and the case against him is based on circumstantial evidence. Further, in the absence of the disclosure statements of the petitioner and other co-accused persons, there is no other evidence on record which can implicate the present petitioner.

6. He submits that the motive assigned in this case is that the deceased Raj Kumar was having illicit relations with accused Jyoti wife of the present petitioner, and when the petitioner came to know about the said relations, he asked Raj Kumar to desist from continuing the same but instead of discontinuing the said relationship, Raj Kumar threatened the petitioner and his wife Jyoti of uploading some objectionable videos of Jyoti on social media networking sites.

7. He contends that even as per the prosecution’s case, the deceased was having objectionable videos of co-accused Jyoti in his mobile phone and for that reason he was called to the Ashirwad Apartment so that efforts could be made to compel him to delete the said videos and not to have any relationship with Jyoti, thus, there was no intention on part of the petitioner to kill the deceased. This is further fortified by the fact that no deadly or dangerous weapon was used to beat the deceased. The case of the prosecution is that the objects of alleged beatings were gas pipe and a belan, which are invariablyavailable in anyhousehold.

8. He submits that reliance has been placed on a video which was alleged to have been recovered from the mobile phone of the petitioner wherein the deceased was seeing lying in an injured condition and three persons were allegedly there besides him namely, the petitioner, co-accused Akash and co-accused Vijay, who had allegedly given beatings to the deceased. He submits that co-accused Akash and Vijay have already been granted bail by this Court and the said fact will enure to the benefit of the petitioner, as he is also similarlysituated as co-accused Akash and Vijay.

9. He submits that a perusal of FSL Report which has been placed on record shows that the examination of audio analysis of all the four accused persons took place and in the results of examination it is mentioned that Ex Q1 pertains to Vijay, Ex. Q2 pertains to Akash, Ex.Q3 pertains to accused Sachin and Ex.Q4 pertains to Jyoti, all of which were opined to be having similar voice with regard to their specimens- Ex.S1, Ex.S2, Ex.S3 and Ex.S4, respectively, however, in the opinion beneath on the same page, it is mentio