JUDGMENT Hon'ble V.K. Bist, J. 1. Mr. R.P. Nautiyal, Senior Advocate, assisted by Mr. Lalit Sharma & Mr. A.D. Massey, Advocates for the applicant. 2. Mr. Subhash Tyagi Bhardwaj, Deputy Advocate General for the State of Uttarakhand. 3. Mr. U.K. Uniyal and Mr. M.S. Pal, Senior Advocates, assisted by Mr. Sandeep Kothari, Advocate for the complainant. 4. This is first bail application moved by the applicant seeking regular bail in F.I.R. No. 412 of 2016, under Sections 302, 328, 34 I.P.C, registered at Police Station Kashipur, District Udham Singh Nagar. 5. Mr. R.P. Nautiyal, learned Senior Counsel for the applicant submitted that the applicant has falsely been implicated in the instant crime; has no criminal history and is languishing in jail since 28.12.2016. He submitted that the applicant is not named in the F.I.R., as the same was registered against unknown persons. He submitted that the statement given by Bhupender Singh is totally false and has been given in order to falsely implicate the applicant. He referred to the Inquest Report, in which the father of the deceased, namely, Gurdeep Singh, uncle of the deceased, namely, Gurmukh Singh and maternal uncle of the deceased, namely, Bhupender Singh also signed. At that time, Bhupender Singh did not disclose anything. He kept mum for 14-15 days and, subsequently, named the applicant as well as Balwant Singh that they administered some powder in the peg of the deceased, which, according to them, is poison. He submitted that nobody will keep mum for 14-15 days. This falsifies the story of prosecution. He submitted that had this story been true, Bhupender Singh would have certainly told this fact to the Investigating Officer earlier. Learned Senior Advocate for the applicant submitted that the person, who saw the dead body first and phoned to the father of the deceased, is not shown anywhere. It is not known as to whether that person is involved in the alleged murder of the deceased. He further submitted that it is a case of circumstantial evidence and motive behind the murder is totally lacking. He also submitted that nobody has said that the powder, which was administered in the peg of the deceased, is particular type of poisonous powder. He argued that there is no other evidence in the matter and applicant should be released on bail. 6. Mr. He also submitted that nobody has said that the powder, which was administered in the peg of the deceased, is particular type of poisonous powder. He argued that there is no other evidence in the matter and applicant should be released on bail. 6. Mr. A.D. Massey, learned counsel also appearing for the applicant submitted that, in the Viscera Report of the deceased, Ethyl Alcohol and Aluminium phosphide poison have been detected. He referred to paragraph nos. 14 & 19 of the judgment of the Hon'ble Apex Court, in the matter of Jaipal vs. State of Haryana, reported in 2003 SCC (Cri) 250, and submitted that Aluminium phosphide is such type of poison, which is not generally used in cases of homicidal death. In case such a poison is kept inside the room, it will fill the room with smell. He submitted that it is not possible that such type of poison was given to the deceased, as in the said case, the deceased would have certainly smelled the bad smell and would not have drunk the said peg. He submitted that, in such cases, vomiting is a prominent feature, which is not present in the instant case. Paragraph nos. 14 & 19 of the said judgment read as under: “14. Dr. Sharma admitted during his cross-examination that aluminium phosphide has a smell. If celphos table is kept open in a room it will fill the room with smell. It is this characteristic of celphos poison emitting pungent smell which renders it improbable to be administered deceitfully and that is why this poison is not generally used in cases of homicidal death. Celphos once administered or consumed spreads rapidly in the body and kidney, liver, spleen, heart and lungs are affected by the poison. The presence of such poison having been consumed would be revealed by pathological findings. 19. We may briefly sum up the opinion of the learned authors from their published paper. Phosphine gas (active ingredient of ALP) causes sudden cardiovascular collapse; most patients die of shock, cardiac arrhythmias, acidosis and Adult Respiratory Distress Syndrome (ARDS). Aluminium phosphide is available in the form of chalky white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphene gas (PH3) which is the active ingredient of ALP. Aluminium phosphide is available in the form of chalky white tablets. When these tablets are taken out of the sealed container, they come in contact with atmospheric moisture and the chemical reaction takes place liberating phosphene gas (PH3) which is the active ingredient of ALP. This gas is highly toxic and effectively kills all insects and thus preverves the stored grains. When these tablets are swallowed, the chemical reaction is accelerated by the presence of hydrochloric acid in the stomach and within minutes phosphine gas dissipates and spreads into the whole body. The gas is highly toxic and damages almost every organ but maximal damage is caused to heart and lungs. Sudden cardiovascular collapse is the hallmark of acute poisoning. Patients come with fast thready or impalpable arterial pulses, unrecordable or low blood pressure and icy coldskin. Somehow these patients remain conscious till the end and continue to pass urine despite unrecordable blood pressure. Vomiting is a prominent feature associated with epigastric burning sensation. The patients will be smelling foul (garlic like) from their breath and vomitus. Many of them will die within afew hours. Those who survive for some time will show elevated juglar venous pressure, may develop tender hepatomegaly and still later Adult Respiratory Distress Syndrome (ARDS), renalshut down and in a very fewcases toxic hepatic jaundice. The active ingredient of ALP is phosphine gas which causes extensive tissue damage. A spot clinical diagnosis is possible in majority of cases of ALP poisoning. However, ALP on account of its very pungent smell (which can drive out all inmates from house if left open) can not be taken accidentally." 7. He submitted that it is not possible that the applicant was present with the accused. He also submitted that in case the applicant is granted bail, he will not misuse the same and will furnish the bail surety as per the satisfaction of this Court. 8. Mr. U.K. Uniyal, learned Senior Counsel appearing for the complainant vehemently opposed the bail application. He submitted that if there is any case which is fit for conviction, this is that case. He submitted that the submission of the learned Senior Counsel for the applicant that Bhupender Singh has falsely implicated the applicant is totally false. If Bhupender Singh was to frame the applicant, he would have done the same at first instance and would not have waited for fifteen days. He submitted that the submission of the learned Senior Counsel for the applicant that Bhupender Singh has falsely implicated the applicant is totally false. If Bhupender Singh was to frame the applicant, he would have done the same at first instance and would not have waited for fifteen days. He submitted that the applicant was close to the deceased and nobody could suspect that he is actually involved in the offence. He submitted that, at one stage, the applicant was the last person to be suspected; but, after realizing everything, the applicant was named. He submitted that it is a case of poisoning, inasmuch as, in the Inquest Report, the body of the deceased was found to be going blue. He further submitted that the independent witness, namely, Suman Kumar, in his testimony, has categorically stated that applicant is the person, who also administered powder inside the peg of the deceased. He further submitted that accused persons were found present there at the time of administering poison to the deceased. He submitted that this fact is evident from the C.C.T.V. footage obtained from the nearby hotel. He also referred to paragraph no. 5 of the counter affidavit filed on behalf of the complainant and submitted that the clone C.D. of C.C.T.V. footage of nearby hotel is annexed as Annexure No. CA-1 to the counter affidavit. He submitted that it is one of the co-accused Balwant whose motorcycle was given to the deceased and he was found dead alongwith that motorcycle. Therefore, this is a perfect case for conviction. He submitted that judgment referred by the learned counsel for the applicant has no bearing in the instant case, inasmuch as, that was the case involving suicide and, in any case, this can be seen at the time of trial. He submitted that there is no response to the C.C.T.V. footage. He then argued that one of the co-accused, Harendra Singh @ Kukka, who has been enlarged on bail by this Court on 07.07.2017, is trying to win over the witnesses and, in fact, is threatening the independent eyewitness, namely, Suman Kumar for which the F.I.R. has been registered. He submitted that in case the applicant is granted bail, he will certainly misuse the same. 9. At this, learned Senior Advocate Mr. R.P. Nautiyal, appearing for the applicant submitted that the said F.I.R. has been registered only to pressurize the applicant. 10. He submitted that in case the applicant is granted bail, he will certainly misuse the same. 9. At this, learned Senior Advocate Mr. R.P. Nautiyal, appearing for the applicant submitted that the said F.I.R. has been registered only to pressurize the applicant. 10. Learned Deputy Advocate General also opposed the bail application and submitted that there is no doubt that it was a case of poisoning. He referred to the statement of Dr. R.K. Sundriyal in this regard. 11. Learned Deputy Advocate General submitted that there was strong motive of murder. To buttress his argument, he referred to the statement of Gurmukh Singh, in which he has categorically stated that deceased was having illicit relationship with the wife of Balwant Singh. He submitted that, due to this reason, he was killed by the applicant and other co-accused. 12. Considering the submission of learned counsel for the applicant and without expressing any opinion as to final merits of the case, this Court is ofthe view that applicant deserves bail at this stage. 13. The bail application is allowed. 14. Let the applicant Devendra Singh @ Labba be released on bail, on executing personal bond and furnishing two reliable sureties, each of the like amount, to the satisfaction of the Magistrate concerned. 15. The learned trial Court shall decide the matter independently, untrammeled by the observation made in this order. 16. It is observed that in case bail granted to the applicant is misused at any stage, it would be open to the complainant to file bail cancellation application.