Granting bail based on absence of premeditation and common intention, and the bailable nature of the offence under Section 201 of IPC.

ORDER

Case diary is perused.

Learned counsel for the rival parties are heard.

The applicant has filed this first application u/S.439 Cr.P.C for grant of bail. Applicant has been arrested on 24/11/2023 by Police Station Girwai, District Gwalior (M.P.) in connection with Crime No.390/2023 registered for offence under Sections 302, 201, 34 of IPC.

The case of prosecution in nutshell is that on 22.11.2023 at about 10 am deceased Anurag in the state of intoxication had a fight with his brother and father (present applicant) and in state of intoxication he also broke articles of the house. Upon asking of the present applicant, co-accused Govind Rajawat who is younger son of the present applicant and his friends Bheem Singh Parihar, Mayank Chaturvedi and Bhanu Chandel caught hold of deceased Anurag Rajawat and tied him after taking him inside the house. Thereafter, police was informed on dial 100 and co-accused Govind Rajawat and his friends went to the market but when they returned at about 4:00 pm, deceased Anurag started abusing by using filthy language. Getting annoyed by this act, Govind Rajawat inserted cloth in his mouth, tied his hands and throttled him and dashed his against the floor, as a result sustained grievous injury in head and blood started oozing out, which made him dull. In the aforesaid incident the role of the present applicant is stated to be of exhorting the co-accused persons. Thereafter, co-accused persons left the house and when they returned they found Anurag dead. In the early morning of 23rd of November, 2023 at about 1:00 am, Co-accused Bheem Singh Parihar brought his motorcycle Apache bearing Registration No. MP 07 MD 9807 and with the help of present applicant and co-accused Govind while taking the dead body when they reached near Jalsa Garden, they were seen by constables Kamal Singh and Narendra Sharma of Police Station Gormi and asked them to stop the motorcycle, frightened, co-accused Bheem Singh and Govind Singh threw the dead body on a plot and fled away. On 23.11. 2023, a mirg information at No. 32 of 2023 u/s. 174 of Cr.P.C was recorded at P.S. Girwai and after recognizing the dead body as of Anurag alias Sanu Rajawat, resident of Quarter No. 1, Purana Awas, 13th battalion, postmortem was conducted and crime vide Crime No. 390 of 2023 u/s. 302, 201, 34 of IPC was registered and present applicant along with co-accused Bheem Singh and Govind Rajawat were named therein.

During investigation, on the basis of extra judicial confession made by Govind Rajawat and his friends Bhanu Chandel and Mayank Chaturvedi, role of the present applicant surfaced and it was found that present applicant exhorted the crime as well as he helped the co-accused persons in disposing of the dead body.

Learned Counsel for the applicant submitted that only allegation against the present applicant is of exhortation which in the light of judgement of Hon'ble Apex Court in the matter of Mohan Singh and Anr. v. State of M.P. reported in AIR 1999 Supreme Court 883 would not attract the provisions of Sec. 34 of IPC and since the present applicant has been arrayed as an accused with the aid of Sec. 34 of IPC, he deserves to be enlarged on bail. It was further contended that so far as involvement of the present applicant in causing disappearance of evidence of the offence which falls u/s. 201 of IPC, is concerned, the offence is bailable, therefore, on this count also the present applicant deserves to be enlarged on bail. On the basis of aforesaid arguments, it was payed that present application deserves to be allowed.

Per contra, Shri Prabhkar Kushwaha, Panel Lawyer appears for the State submits that there is a clear evidence against the present applicant of exhorting the co-accused persons to commit the crime and helping the co-accused persons in disposing the dead body and causing disappearance of the evidence of the offence and in such set of circumstances, when there is active participation of the appl