HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Dated Nainital the 24th June, 2011 4th Bail Application No. 4 of 2011 Order on the bail application of the accused. Surendra Gupta S/o Sri Vishram Gupta ……. Applicant Versus State of Uttarakhand …….. Opposite Party In Case Crime No. 335 of 2009 U/s 302 I.P.C. and 3/2 (5) SC/ST Act Police Station Kotwali Patel Nagar District Dehradun Hon’ble Tarun Agarwala, J. Heard Shri Lokendra Dobhal, the learned counsel for the applicant and Shri B.S. Parihar, the learned Brief Holder for the State. The first bail application was rejected on 1st April, 2010 for want of prosecution. The 2nd Bail Application was rejected on merit by an order dated 9th July 2010 and the 3rd Bail Application was rejected by an order dated 27th December, 2010. The applicant has now filed the 4th Bail Application. The learned counsel for the applicant contended that whereas the time shown in lodging of the first information report is 6:10 a.m. on 26th October, 2009 by Phool Chandra, the panchnama shows that the report had been lodged by one Shamsher Singh at about 7:00 a.m. and, consequently, there is a glaring discrepancy. The learned counsel submitted that the first information report indicates that the complainant Phool Chandra alongwith Shamsher Singh had seen the applicant running away from the scene of the crime but in the statement before the Court as PW1, he has stated that the applicant as well as his accomplice Tony were stoning the deceased to death and that the complainant had seen this incident. The learned counsel submitted that this statement is an afterthought and is not in consonance with the initial allegation made in the first information 2 report. Further one Ganga Ram PW4 has been produced in front of whose house the body of the deceased was found and who stated that when he opened his door in the early hours, he found this body and there was no one else, namely, the accused nor the complainant and that he immediately rang up the Gram Pradhan on the basis of which the Gram Pradhan and police came to the spot. In the light of the aforesaid, the learned counsel submitted that an irresistible conclusion can be drawn that there were no eyewitness and that no witness had seen the crime. The learned counsel submitted that in view of the allegations made in the first information report and the contradiction made by the complainant in his statement before the Court, it is clear that the applicant is being dragged into this controversy on account of animosity. The learned counsel submitted that in the light of these glaring contradictions coupled with the fact that the co-accused Tony who had also been assigned a similar role of stoning the deceased to death and who has already been enlarged on bail, the applicant deserves the same treatment. Having heard the learned counsel for the parties at some length and having perused the record and the statement of the witnesses, the Court finds that the role granted to Tony, namely, the co-accused and the applicant is the same. In the first information report, the allegation made by the complainant is, that he saw the applicant and Tony running away from the scene of the crime but in his statement before the Court, the complainant has added further that the applicant as well as the co-accused Tony was stoning the deceased to death. Further, the statement of Ganga Ram states when he opened the door, the body was lying in front of his house and there was no one. In the light of the aforesaid, coupled with the fact that the co- accused has already been enlarged on bail, the court is of the opinion that the applicant is also entitled to be enlarged on bail at this stage. 3 Consequently, Bail Application is allowed. Let the applicant be enlarged on bail in Case Crime No. 335 of 2009, U/s 302 I.P.C. and 3/2 (5) SC/ST Act, on his depositing a sum of Rs.50,000/- in cash and furnishing two sureties each of the like amount to the satisfaction of Magistrate concerned. (Tarun Agarwala, J.) Dated 24.06.2011 Shiv