The court can grant bail to an accused person if the accused person has made out a fit case for grant of bail.

Court No. - 70

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41271 of

2021

Applicant :- Dharmendra Talan

Opposite Party :- State of U.P.

Counsel for Applicant :- Ajay Kumar,Devendra Kumar

Mishra,Preet Pal Singh Rathore

Counsel for Opposite Party :- G.A.,Ajay Kumar Pathak

Hon'ble Manish Kumar,J.

Heard Sri Preet Pal Singh Rathore, learned counsel for the

applicant, Sri Om Prakash Mishra, learned AGA for the

State and Sri Ajay Kumar Pathak, learned counsel for the

complainant.

By means of this application, the applicant, who is involved

in Case Crime No. 400 of 2021, under sections 304, 34 of

the Indian Penal Code, Police Station Jewar, District-

Gautam Budh Nagar is seeking enlargement on bail during

the trial.

According to the version in the First Information

Report (hereinafter referred to as, the FIR) dated

05.06.2021 lodged at 02.11 hours by the informant is that

three accused persons had hit her daughter (Aarti) by a

motor cycle while she was sitting in a gallery of the house

due to which Aarti got grievous injuries and subsequently

succumbed to her injuries. It has also been mentioned in

the FIR that eight days ago, while Aarti was sitting at the

shop, they had made some vulgar comments, due to which

an altercation had taken place between them.

Learned counsel for the applicant has submitted that the

FIR was lodged on 05.06.2021 at 02.11 hours whereas the

inquest was started on 04.06.2021 at 23.55 hours meaning

thereby the inquest was made before lodging of the FIR.

Further submission of learned counsel for the applicant is

that the prosecution is improvising its case at every stage,

when the injured was brought to the hospital accompanied

by Vandana (sister of the deceased) informed that she met

with an accident outside the house, whereas while giving

the statement under Section 161 Cr.PC., she has narrated

almost in verbatim the narration in the FIR, lodged by the

informant i.e. father of Vandana and the deceased that the

accused persons had hit her by a motor cycle while she

was sitting in the gallery of the house. It is further

submitted that the accident had occurred and the applicant

was driving the motorcycle and the deceased was sitting

outside her house on the road, so at the most, the death

was caused by negligence and the case of the applicant

falls under Section 304-A IPC and the maximum

punishment provided is two years. It is further submitted

that the charge-sheet has already been filed in the case

and there is no occasion either to tamper or influence any

of the witnesses. It is further submitted that the applicant

has no criminal history.

On the other hand, learned AGA has opposed the prayer for

grant of bail and has submitted that from the FIR and the

previous incident, as stated in the FIR, offence is made out

against the applicant and the charge-sheet has been filed

under Section 304 IPC, where the punishment provided is

imprisonment for life or imprisonment for either description

of a term which may extend to 10 years.

After hearing the submissions made by the learned counsel

for the respective parties and examining the material

available on record, prima facie it has been found that the

inquest was made prior to lodging of the FIR. From the

record, it is revealed that the prosecution is changing her

stand at every stage, as mentioned above i.e. in the

hospital, Vandana had stated that the deceased met with

an accident outside the house and while giving the

statement to the Police under Section 161 Cr.P.C, changed

the place of occurrence as well as given the name of the

applicant along with other co-accused persons for killing

her sister. The applicant is in jail since 14.07.2021.

Keeping in view the nature of offence and totality of facts

and circumstances of the case and without entering into

the merits of the case, I am of the view that the applicant

has made out a fit case for grant of bail. Hence, the bail

application is al