Akhilesh @ Golu vs State Of U.P. And Another
2019 Latest Caselaw 70 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 53
 

 
Case :- CRIMINAL APPEAL No. - 264 of 2019
 

 
Appellant :- Akhilesh @ Golu
 
Respondent :- State Of U.P. And Another
 
Counsel for Appellant :- Pankaj Kumar Gupta
 
Counsel for Respondent :- G.A.,Virendra Kumar Gupta
 

 
Hon'ble Ghandikota Sri Devi,J.

Counter affidavit has been filed in Court today by learned AGA appearing for the State-respondents. The same is taken on record.

It has been submitted by learned AGA that notice upon respondent No.2 has been served on 20.1.2019. Therefore, I proceed to examine the case on its merit.

Heard learned counsel for the appellant, learned AGA for the State and perused the record.

This criminal appeal under Section 14-A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as 'the Act') has been preferred by the appellant against the order dated 19.12.2018, passed by the Special Judge (SC/ST Act)/Additional Sessions Judge, Ghaziabad in Bail Application No.8826 of 2018 (Akhilesh @ Golu vs. State of UP) arising out of Case Crime No. 1415 of 2016 under Sections 147, 148, 149, 302, 323 IPC and 3(2)(5) of SC/ST Act, Police Station-Vijay Nagar, District-Ghaziabad.

Learned counsel for the appellant contends that the appellant has been falsely implilcated in the alleged incident dated 12.9.2016, in which two persons, namely, Ravindra and Smt. Premwati (the maternal grand-mother of the first informant) died due to indiscriminate firing by the appellant and five other persons; that as per the averments made in the FIR, there was dispute between Krishnaveer, the father of the appellant and the first informant and on 12.9.2016, when the father of the appellant was tethering his cow outside the house, Ravindra, the deceased the son of first informant made a protest to which the father of the appellant and other family members including the appellant along with the accused, Satish armed with fire-arms made indiscriminate firing which caused the death of Ravindra and Smt. Premwati; that in his statement under Section 161 Cr.P.C., the first informant has repeated the same version; that the post-mortem report of Ravindra shows that he sustained three gun-shot wounds of entry from which multiple pellets were recovered and similarly one gun-shot injury was found on the body of Smt. Premwati, wherein multiple pellets were also recovered; that .12 bore pistol is alleged to have been recovered from the possession of the accused however it is argued that there is no specific role assigned to any of the accused regarding use of weapon and causing fatal injuries to both the injured persons. It is further contended by learned counsel for the appellant that the informant is said to be the eye-witness of the occurrence and in the First Information Report, he has mentioned that the father of the appellant had armed with hathiyar and appellant and other had armed with tamanch and katta had fired on the deceased. However, during the arrest of the present appellant, tamancha was recovered whereas DBBL Gun and tamancha were recovered from the possession of co-accused Krishnaveer and Satish and all the weapons were sent to the laboratory for ballistic expert, Agra for comparison and the report of the ballistic expert shows that the alleged tamancha was not used in the offence. It has further been contended that the alleged place of occurrence is also seems to be highly doubtful as there is no mention of blood in the site-plan or spot inspection note and according to the FIR, only two deceased have sustained injuries however the statement of Smt. Rajesh and Smt. Reenu under Section 161 Cr.P.C. dated 29.9.2016, it is mentioned for the first time that Smt. Rajesh and Smt. Reenu, themselves had also sustained injuries in the alleged incident. In fact, they have not sustained any injury and through their statements they have manipulated the version and shown the false and fictitious injuries. Learned counsel for the appellant has also contended that co-accused Satish and Krishnaveer have already been enlarged on bail and the case of the appellant cannot be distinguishable with that of the co-accused and hence he claimed the ground of parity and prayed for releasing him on bail. It has further been contended that charge-sheet has already been submitted and the accused-appellant has no criminal history and he is in jail since 17.9.2016; that learned trial court has acted wrongly and illegally in rejecting the bail application, hence, the impugned, which is wrong and incorrect is liable to be set aside.

Per contra, learned AGA supported the impugned order and contended that the incident in question has been occurred and in the said incident, two innocent persons have been murdered due to wrongful act of the appellant and other co-accused. It has also been contended by learned AGA that the case of the appellant is completely distinguishable with the other co-accused from the evidence available on record, prima facie case is made out against the appellant. Hence, there is no infirmity or illegality in the impugned order dated 19.12.2018, passed by the trial court. However, while opposing the prayer for bail of the appellant, learned AGA could not dispute the factum of parity of co-accused Krishnaveer and Satish, who have released on bail by orders of this Court 20.11.2018 and 3.11.2017, respectively.

Upon hearing learned counsel for the parties and on perusal of the record, considering the complicity of the accused appellant, severity of the punishment as well as totality of facts and circumstances of the case and keeping in view the fact that the trial of the case is not likely to be concluded in the near future, the appeal has some substance. Hence, I find that the court below has acted wrongfully in rejecting the bail application of the appellant and the same is liable to be set aside.

Accordingly, the impugned order dated 19.12.2018, passed by the Special Judge (SC/ST Act)/Additional Sessions Judge, Ghaziabad in Bail Application No.8826 of 2018 (Akhilesh @ Golu vs. State of UP) arising out of Case Crime No. 1415 of 2016 under Sections 147, 148, 149, 302, 323 IPC and 3(2)(5) of SC/ST Act, Police Station-Vijay Nagar, District-Ghaziabad, is hereby set aside.

The present criminal appeal 14-A(2) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989, is allowed.

Let the appellant Akhilesh @ Golu be released on bail in the aforesaid case on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions:

1. The appellant shall not tamper with the prosecution evidence and will not seek adjournment if the witnesses are present in the court.

2. The appellant shall not pressurize the prosecution witnesses.

3. The appellant shall remain present before the trial court on each date fixed either personally or through his counsel on the date fixed for framing of charge and recording of the statement under Section 313 Cr.P.C. In case of his absence without sufficient cause, the trial court may proceed against him under Section 229-A of IPC.

In case of flouting of any of the conditions enumerated above, the order granting bail shall automatically stands cancelled.

Order Date :- 25.2.2019

LN Tripathi