Kafeel vs State Of Uttarakhand

Alok Kumar Verma, J

This is the Second Bail Application. The First Bail Application was rejected on 16.11.2022 by the coordinate Bench. After rejection of the First Bail Application, evidence of Mahfuz Ali (PW8), alleged eye-witness of the incident, has been recorded.

Present Application has been filed for grant of regular bail in connection with the Case Crime No.78 of 2020, registered at police station Kotdwar, District Pauri Garhwal. Applicant is in judicial custody under Section 302 read with Section 34 of the Indian Penal Code, 1860.

As per prosecution case, present applicant along with co-accused Idrish committed the murder of the husband of the informant by hitting him with iron road and a hammer. The co-accused Idrish assaulted the deceased with a iron road, whereas, the present applicant assaulted the deceased with a hammer. Prosecution witness Naseem (PW2), Sahazad (PW3) and Mahfuz Ali (PW8) are eye-witnesses of the incident. On the instance of the present applicant, a hammer was recovered.

Mr. Ankurit Raj David, Advocate, contended that the applicant has been falsely implicated in the present matter. Prosecution’s witness Naseem (PW2) and Mahfuz Ali (PW8) did not support the prosecution case and they have turned hostile. The prosecution witness Sahazad (PW3) has also not supported the prosecution case in his cross examination while wife of the deceased Azmi (PW1) is not an eye-witness of the incident.

Mr. Ankurit Raj David, Advocate, further contended that nothing was recovered at the instance of the applicant. Applicant has not been convicted by any Court. The alleged recovered hammer was sent to the Forensic Science Laboratory for examination. As per report of the Laboratory, blood was not detected on the said hammer. Applicant is in custody since 31.05.2020. He is a permanent resident of District Pauri Garhwal and co-accused Idrish has already been granted bail by the coordinate Bench.

On the other hand, Mrs. Manisha Rana Singh, A.G.A., has opposed the bail application. She has submitted that as per post-mortem report, the cause of death was head injury. However, she fairly conceded that blood was not detected on the recovered hammer and the co-accused of the similar role has been granted bail by the coordinate Bench.

Bail is the rule and committal to jail is an exception. Refusal of bail is a restriction on the personal liberty of the individual, guaranteed under Article 21 of the Constitution of India. The object of keeping the accused person in detention during the trial is not punishment. The main purpose is manifestly to secure the attendance of the accused.

Having considered the submissions of learned counsel for both the parties and in the facts and circumstances of the case, there is no reason to keep the applicant behind the bars for an indefinite period, therefore, without expressing any opinion as to the merit of the case, this Court is of the view that the applicant deserves bail at this stage.

The Bail Application is allowed.

Let the applicant- Kafeel be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned with the following conditions :-

(i) Applicant shall attend the trial court regularly and he will not seek any unnecessary adjournment;

(ii) Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of this case.

It is clarified that if the applicant misuses or violates any of the conditions, imposed upon him, prosecution will be free to move the court for cancellation of bail.