Neutral Citation No. - 2025:AHC:92933 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16529 of 2025 Applicant :- Shoaib Khan Opposite Party :- State of U.P. Counsel for Applicant :- Irshad Ahmad Counsel for Opposite Party :- Ashok Kumar Singh,G.A. Hon'ble Sameer Jain,J. 1. Supplementary affidavit filed on behalf of the applicant is taken on record. 2. Heard Sri Irshad Ahmad, learned counsel for the applicant and Sri Santosh Nigam, learned A.G.A. for the State-respondent and Sri Ashok Kumar Singh, learned counsel for the informant. 3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No.62 of 2025, under Sections 105, 238 Kha B.N.S., Police Station Gadmukteshwar, District Hapur, during pendency of the trial. 4. Learned counsel for the applicant submits that applicant was not named in the FIR but during investigation when it was found that deceased was sitting before his death on the E- rickshaw of the applicant then he has been made accused in the present matter. 5. He further submits that except the evidence of last seen and the fact that when applicant was arrested then on his pointing out the bag of the deceased was recovered, there is no other evidence against the applicant. 6. He further submits that merely on the basis of above evidence, at this stage, it cannot be said that applicant committed the murder of the deceased specially considering the fact that the alleged recovery of bag was made from an open place, which was accessible to all. 7. He further submits that even from the post-mortem report, it reflects, cause of death of the deceased could not be ascertained and his viscera was preserved and however, till date viscera report of the deceased is not on record but there is no cogent evidence that applicant administered any poison to him, therefore, even if in the viscera report, it will be found that deceased died due to the poison then also applicant cannot be held liable for his death. 8. He further submits that applicant is having no criminal history and he is in jail in the present matter since 07.02.2025. 9. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submit that through CCTV Footage deceased was last seen alongwith the applicant while he was sitting on his E-rickshaw and even on the pointing out of the applicant bag of the deceased was recovered but could not dispute the fact that the above recovery was made from a place, which was accessible to all. 10. They further could not dispute the fact that from the post- mortem, it reflects, cause of death of the deceased could not be ascertained and his viscera was preserved and however, till date viscera report of the deceased is not on record but there is no cogent evidence that applicant administered any poison to the deceased. 11. They further could not dispute the fact that applicant is having no criminal history and he is in jail in the present matter since 07.02.2025. 12. I have heard both the parties and perused the record of the case. 13. However, as per allegation, applicant committed the murder of the deceased but it is a case of circumstantial evidence and except the evidence of last seen and recovery of the bag of the deceased on the pointing out of the applicant, there is no other evidence against the applicant on record as far as alleged recovery is concerned, it reflects, same was recovered from a place, which was accessible to all. 14. Further, in view of this Court merely on the basis of last seen evidence, at this stage, it is hard to believe that applicant was the person, who committed the murder of the deceased specially considering the fact that from the post-mortem, it reflects, cause of death of the deceased could not be ascertained and his viscera was preserved and however, till date viscera report of the deceased is not on record but there is no evidence that applicant administered any poison to the deceased. 15. Further, applicant is having no criminal history and he is in jail in the present matter since 07.02.2025. 16. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail. 17. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed. 18. Let the applicant- Shoaib Khan be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless her personal presence is exempted. (ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti- social activity. 19. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant. 20. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 27.5.2025 Zafar Digitally signed by :- MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad