Ashok vs State Of U.P.
2021 Latest Caselaw 1927 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 30
 

 
Case :- BAIL No. - 11188 of 2019
 

 
Applicant :- Ashok
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sanjay Singh Chauhan,Alok Kumar Singh,Jalaj Kumar Gupta,Mohd. Taiyyab
 
Counsel for Opposite Party :- G.A.
 
Hon'ble Vikas Kunvar Srivastav,J.

Called on.

Heard learned counsel for the bail-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-Ashok who is involved in Case Crime No. 24 of 2019, under Sections 302/504/506 IPC, Police Station Chandan Chauki, District Lakhimpur Kheri.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Sessions Judge, Lakhimpur Kheri vide order dated 25.10.2019.

Learned counsel for the accused-applicant, reading over the First Information Report, lodged by the complainant-Harichandra @ Monu Verma on 23.08.2019, submitted that the complainant informed, his father on 22.08.2019 at about 6:00 p.m. went to village Ram Nagar to attend the 'Chhathi' (sixth day) ceremony of new born son of one Raju. He further stated in the report that, his father ate and drunk there and intoxicated thereby fell into a quarrel with the said Raju and Ashok, both the sons of Khemma and Guddu son of O.P. Rana, wherein they abused each other heavily, after that when father of the complainant was returning to home, the said Raju with Ashok and Guddu under intoxication inflicted blow of one sharp edged weapon on his head and neck, resulting his father's death. The dead body of his father was thrown into a drain by the accused persons. On 23.08.2019 at about 7:00 a.m., when the complainant and his uncle Pappu were going to Ram Nagar from their home, they saw the dead body of complainant's father lying into drain near the field of Kabire. They drew the dead body out from the water and went to police station for lodging the FIR.

Learned counsel for the bail-applicant submitted that the entire FIR version does not disclose the source of information on which the complainant lodged the FIR against the present accused-applicant alongwith others. Learned counsel further submitted that the present accused-applicant was not present on the spot and so far as the narration in the FIR is concerned, it simply discloses that the deceased went to the house of Raju, one of the co-accused. Learned counsel further submitted that the present accused-applicant is falsely implicated in the case as there is no direct evidence. He further argued that merely on the basis of apprehension and suspicion, the complainant lodged the FIR.

He further drew attention of the Court towards statement of the complainant recorded under Section 161 Cr.P.C. by the police wherein the complainant stated that his real uncle and brother were the eye witness of the incident who witnessed the three accused, namely, Raju, Ashok and Guddu. Raju was holding an Axe in his hand whereas Ashok and Guddu, respectively the present accused-applicant and another co-accused, caught the deceased from behind, when they were coming after enjoying the feast on the occasion of 'Chhathi' from the house of Raju, on the way to the home. The complainant in his statement further said that his uncle and brother fled away from the spot seeing the incident of killing of deceased by Raju through Axe under the fear of their lives as they threatened. However, learned counsel for the bail-applicant submitted that this fact is not stated in the First Information Report, therefore the uncle as an eye witness is not believable, due to improvement in the statement under Section 161 Cr.P.C., the statement is not reliable without proving it during trial.

Learned counsel further submitted that if the FIR version and the statement under Section 161 Cr.P.C., despite contradictions therein, is believed, then also the role assigned to the present accused-applicant is only to catch hold of the deceased, whereas the role of committing murder by inflicting the sharp edged weapon like Axe on the head and neck of the deceased is assigned to Raju only. Learned counsel further submitted that in the absence of any credible direct evidence, only on the basis of apprehension and suspicion, the present accused-applicant cannot be treated as participant in the commission of crime.

Learned counsel further submitted that since there is no criminal history against the present accused-applicant and he is a common person and native villager, being a poor person, he is not in a position to flee away from the process of the Court, therefore deserves to be released on bail, as he is ready and willing to face trial and to abide himself with the conditions imposed by the Court.

On the other hand, learned AGA, who has filed the counter affidavit in the matter and relied on the statement under Section 161 Cr.P.C. recorded by the Investigating Officer, has no rebuttal of the fact that the present accused-applicant has no role than that to catch hold of the deceased but so far as the direct evidence of the incident is concerned, there is statement of one Pappu which is recorded by the Investigating Officer. The said witness is brother of the deceased whose reference finds place in the First Information Report as uncle of the complainant, who remained in the house whole night and accompanied the complainant in the morning on 23.08.2019, when they were going to Ram Nagar from their home and saw the dead body lying on the way. Therefore, his statement as eye witness is subject to be proved by cogent and reliable evidence in the course of trial.

At this stage, prima face, there is no sufficient material to support the implication made by the complainant against the present accused-applicant, therefore he deserves to be released on bail.

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.

Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

Let applicant-Ashok be released on bail Case Crime No. 24 of 2019, under Sections 302/504/506 IPC, Police Station Chandan Chauki, District Lakhimpur Kheri, on his furnishing a personal bond worth Rs. 1,00,000/- (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:-

The case of co-accused Raju is distinguishable from that of the present accused-applicant.

(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 :- 3.2.2021

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