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Allahabad High Court · body

2012 DIGILAW 235 (ALL)

Rakesh Jaiswal v. State of U. P.

2012-01-25

S.C.AGARWAL

body2012
S.C. Agarwal, J.;- Heard Sri Sunil Kumar, learned counsel for the applicant, learned A.G.A. for the State as well as Sri Upendra Upadhyay, learned counsel for the complainant and perused the record. 2. Learned counsel for the applicant submitted that in the FIR, no role was assigned to the applicant and it was alleged that the incident was caused by three unknown persons. The deceased, while admitted in the hospital, disclosed to his wife - the first informant that the unknown assailants used to visit the house of applicant Rakesh Jaiswal and co-accused Rajesh Jaiswal. The contention is that from the FIR, it appears that allegation of criminal conspiracy was levelled against the applicant and his direct involvement was not implied. The first informant herself is not an eyewitness. Abhinesh Jaiswal, the nephew of the deceased and Shiv Prasad Jaiswal, brother of the deceased are alleged to be the eyewitnesses of the incident. The deceased was interrogated by the investigating officer and the deceased asserted the presence of Rakesh Jaiswal along with the unknown persons and also assigned the role of firing to the applicant. Similar statements were given by nephew and brother of the deceased. 3. Learned counsel for the applicant submitted that in the FIR, the prosecution case was of criminal conspiracy against the applicant, but the witnesses and the deceased, in their statements given to the investigating officer, changed the version and alleged direct involvement of the applicant and assigned him the role of firing at the deceased. 4. Learned counsel for the applicant submitted that incident took place on 25.4.2011 at 10:30 A.M., whereas the applicant was arrested in crime no.78 of 2011 under section 60 of the Excise Act, P.S. Cantt., Lucknow on 13.4.2011and he remained in District Jail, Lucknow from 13.4.2011 to 25.4.2011 and was released from prison on 25.4.2011 at 20:31 hours, as evident from the certificate issued by Senior Superintendent, District Jail, Lucknow (annexure 8 to the bail application) 5. Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail. It was contended by learned counsel for the complainant that the applicant was not in jail and some impostor was set up before the Lucknow Police to be arrested and detained in jail in the name of the applicant. Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail. It was contended by learned counsel for the complainant that the applicant was not in jail and some impostor was set up before the Lucknow Police to be arrested and detained in jail in the name of the applicant. If the applicant was not in jail and some impostor was set up in the name of the applicant, it was the duty of the investigating officer to investigate this aspect of the matter and also to give a categorical finding or conclusion as to whether the person detained in jail was actually the applicant or not. 6. At this stage, it is difficult to disbelieve the certificate issued by Senior Superintendent, District Jail, Lucknow. Since the prosecution is now not relying upon the theory of criminal conspiracy, but the prosecution case is based on direct involvement of the applicant, which is totally inconsistent with the detention of the applicant in jail. 7. Considering the jail certificate, the case for bail is made out. In view of the above and without expressing any opinion on the merits of the case, let applicant Rakesh Jaiswal, involved in case crime no.172 of 2011 under Sections 307, 506, 427, 120-B, 302 I.P.C. pertaining to Police Station Nawabganj, District Allahabad be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned and also subject to the following conditions : (a) The applicant shall attend the court according to the conditions of the bond executed by him ; and (b) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.