Jai Prakash Josi vs State Of U.P.
2021 Latest Caselaw 1833 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 30
 

 
Case :- BAIL No. - 10817 of 2019
 

 
Applicant :- Jai Prakash Josi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anup Kumar Mishra,Anil Kumar Tripathi,Chhaya Tripathi
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Kunvar Srivastav,J.

Called on.

Heard learned counsel Sri Anil Kumar Tripathi, Advocate for the accused-applicant, learned Additional Government Advocate for the State and perused the material available on record.

The present bail application has been filed on behalf of the accused-applicant-Jai Prakash Josi who is involved in Case Crime No. 439 of 2019, under Section 304 IPC, Police Station Salon, District Raebareli.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Additional Sessions Judge-I, Raebareli vide order dated 22.10.2019.

Learned counsel for the accused-applicant, reading over and impressed on the contents of the First Information Report which reveals that earlier to the lodging the First Information Report on 20.08.2019, the complainant informed the police about the death of his brother on 17.08.2019 in writing, with that he committed suicide. Learned counsel further submitted that later on the story of suicide by the deceased-Jagat Bahadur was altered on the basis of an information received to the complainant from Neha, the daughter of deceased-Jagat Bahadur after 20 hours. Learned counsel further impressed on the point that the story as allegedly told by Neha is not interrogated by the Investigating Officer from her, as such the complainant, whatever stated in the First Information Report dated 20.08.2019, is nothing but a hear say story.

In short, the First Information Report dated 20.08.2019, states that Jagat Bahadur came back from Bombay to home on 16.08.2019 but when he did not find his wife and children there, he came to know that they had gone to her parental house to observe the festival of 'Raksha bandhan'. It is further stated that Jagat Bahadur borrowed the motorcycle of his cousin brother Parmesh Yadav and went to the in-laws' house at Kasaha-Ka-Purwa, PS Sangramgarh, District Pratapgarh. There also he did not find his wife and children. The complainant has further stated that the wife of his brother Jagat Bahadur, namely, Suman was in illicit relation with one Jai Prakash Josi from a considerably long period, which fact was known to Jagat Bahadur himself as well his family members and other native villagers.

The complainant further stated in the First Information Report that his brother-deceased-Jagat Bahadur by this reason only fell in the habit of drinking liquor. He further stated that deceased bought a half bottle of wine and was drinking at about 12:30 p.m. in his house. His wife Suman alongwith Jai Prakash Josi reached there, angry thereby the deceased-Jagat Bahadur began to quarrel with both of them. He, heavily intoxicated under the effect of wine, was abusing his wife and Jai Prakash Josi (the present accused-applicant). He was forbidden by the present accused-applicant-Jai Prakash Josi but when he continued so, present accused-applicant asked Suman to get stopped her husband, the deceased-Jagat Bahadur from abusing.

Learned counsel further submitted, in the First Information Report the allegation made by the complainant is of much relevance, that with a view to stop from abusing, Suman-the co-accused took the neck of the deceased in her grips, due to which the deceased became unconscious. Subsequently he died after some time.

Learned counsel further drew the attention towards the statement in the FIR made by the complainant that the role of the present accused-applicant is only to assist the co-accused-Suman in hanging the dead body of the deceased-Jagat Bahadur so as to shape the same an incident of suicide. Thereafter both the accused fled away from the spot. The FIR itself contains the statement that this story was narrated by Neha, the daughter of deceased to the complainant after 20 hours.

Learned counsel further drew attention of the Court towards the inquest report made by the Investigating Officer on 17.08.2019 at about 12 'O' Clock. Learned counsel submits that the incident is said to have occurred on 16.08.2019 about 12:30 in the night. The information given by Lal Bahadur Yadav, the complainant, the brother of the deceased, on 17.08.2019 at about 10:30 a.m. The time of 20 hours, as stated in the FIR, covers in between the time of occurrence as well as time of reporting the death of deceased, as allegedly told by Neha, the daughter of the deceased.

The opinion as to the cause of death expressed by the witnesses of inquest including the complainant Lal Bahadur Yadav himself that the death is caused due to commission of suicide by the deceased himself. In this way, learned counsel submits that this is an improvement. Learned counsel further submits that so far as the role of present accused-applicant in the FIR is concerned, it is only false implication to assist in the alleged conspiracy to the co-accused to whom the role of murder by strangulation of the deceased is assigned.

Learned counsel further drew attention towards post-mortem report wherein immediate cause of death is reported to antemortem strangulation leading to asphyxia. Learned counsel further submits that in the First Information Report when it is stated that everybody including the deceased-Jagat Bahadur, his family members, the complainant and the villagers were aware about the alleged illicit relation of deceased's wife Suman alongwith the present accused-applicant-Jai Prakash Josi, then why not the First Information Report was made naming the present accused-applicant therein. Further, he submits that the complainant himself admits that his brother (deceased) was heavily intoxicated under the effect of wine, then possibility of his committing suicide is natural in the circumstances as narrated by him and, accordingly, the witnesses of inquest have opined the immediate cause of death as commission of suicide.

Lastly, learned counsel submits that the present accused-applicant who has been falsely implicated in the case was not present at the spot and there is no evidence as to his presence and participation in the crime. So far as the story narrated by Neha is concerned, the Investigating Officer has not recorded the statement of Neha, as in supplementary counter affidavit the prosecution has itself admitted this fact. Learned counsel submits that when the probable cause of death in the circumstances is reported to the police as suicidal death, subsequent improvement may be for poising some other hidden interest into the property of deceased-Jagat Bahadur as against his wife, the co-accused-Suman for which the present accused-applicant is falsely implicated. The entire case is based on circumstantial evidence.

On the basis of aforesaid contentions, learned counsel for the bail-applicant submits that the present accused-applicant who is a common man having no criminal antecedent and not in a position to flee away from the process of the court deserves to be granted bail so as to put efficaciously his defence in trial.

Countering the arguments of learned counsel for the bail-applicant, learned AGA for the State submits that there is illicit relation between the present accused-applicant and wife of the deceased, the co-accused Suman by reason of which the deceased was murdered and same was staged as commission of suicide. Learned AGA, in this regard, further submitted that the chargesheet has been submitted in the court by the Investigating Officer, therefore, the present accused-applicant cannot take plea of innocence in the matter.

He further submitted that the eye witness of incident, Neha, the daughter of deceased, told the entire story to the complainant, then the First Information Report was lodged on the basis of that information. However, learned AGA has not rebutted the fact that the hear say story was reduced into writing by the complainant. Subsequent to his First Information, the subsequent story has not been corroborated by Neha herself as affirmed in supplementary counter affidavit. The learned AGA has confirmed that Investigating Officer has not recorded the statement of Km. Neha.

Further, learned AGA has also no denial of the absence of criminal antecedent on the part of present accused-applicant. Learned AGA further has not rebutted the fact that there is no direct evidence of any other eye witness, relative or independent witness of locality. Learned AGA, however, submits that the chargesheet including the evidences collected during investigation and list of witnesses have already been submitted in the court and trial is to commence.

On perusal of record and hearing the learned counsels for the parties, without making any comment on merits of the case, considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment, I find force in the submission of learned counsel for the bail-applicant with regard to the absence of any direct reliable evidence which prima facie show the culpability and participation of the accused-applicant in the alleged allegation made in the First Information Report against the present accused-applicant.

Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Let applicant-Jai Prakash Josi be released on bail in Case Crime No. 439 of 2019, under Section 304 IPC, Police Station Salon, District Raebareli, on his furnishing a personal bond of Rs.100000/- (one lac) and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 2.2.2021

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