Smt. Kalawati vs State Of U.P.
2021 Latest Caselaw 1309 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Case :- BAIL No. - 12108 of 2019

Applicant :- Smt. Kalawati

Opposite Party :- State of U.P.

Counsel for Applicant :- Atul Verma,Hari Krishna Verma

Counsel for Opposite Party :- G.A.

Hon'ble Vikas Kunvar Srivastav,J.Kheri

The case is called out.

Heard learned counsel for the bail-applicant and learned A.G.A. for the State and perused the record.

The present bail application is filed on behalf of the accused-applicant- Smt. Kalawati, who is involved in Case Crime No.737/2018, under Sections - 452, 302 IPC, registered at Police Station - Mohanlalganj, District - Lucknow.

The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Session's Judge, Lucknow, vide order dated 13.03.2019, passed in Bail Application No.1741 of 2019. A copy of the bail application has already been received in the office of learned G.A.

Counter affidavit and rejoinder affidavit have been duly exchanged between the parties to the case, as such, the case is riped for hearing.

Learned counsel on reading over the first information report lodged by the complainant (wife of the deceased) submits that the present accused-applicant is falsely implicated only for the reason that since she is the wife of the co-accused Chandra Shekhar Rawat. He further drew the attention towards the contents of the FIR to the effect that the parties to the incident had old enmity along with the husband of the present accused-applicant, the co-accused Chandrashekhar Rawat alias Gole. The occurrence in question happened on 19.12.2018 wherein allegedly the Chandrashekhar Rawat (co-accused) due to the old enmity attacked on the deceased Raj Karan inflicting blow of 'banka' (axe) held by him and iron rod stated to have been used was held by the present accused-applicant Kalawati. The blood stained 'banka' was recovered on the pointing out and confessional statement of the co-accused Chandra Shekhar Rawat whereas iron rod is said to have been recovered by the police on the pointing out of the present accused-applicant. This is material as learned counsel says that the statement of the complainant Shanti is the only statement which blames and assigns the role of having iron rod on the accused-applicant no statement of any independent statement has been recorded by the Investigating Officer. Learned counsel further drew attention towards the pre and post-mortem report and ante-mortem injuries mentioned therein which mainly shows incised wound along with sub-contusions. Apparently, the contusions on the right side of head are not seen sufficient to cause serious injury resulting into death whereas it is also not possible to cause death and the injuries also cannot be held sufficient to cause death.

Learned counsel submits that the present accused-applicant should be released on bail so that to put proper defence as she is detained in jail since 22.12.2018. Being a lady for no fault of him detaining him in jail would not be proper. Moreover, another co-accused Shivam Rawat to whom the role of catching hold of the deceased in the course of occurrence has been assigned has been granted bail by the co-ordinate bench of this Court vide order dated 20.11.2019. Lastly, learned counsel submits that accused-applicant is local resident of the area. She is not in a position to hurl threats to the witnesses or hamper the evidences as the Investigating Officer has already collected the incriminating evidences and recorded the statements. She is not in a position to flee away from the process of the Court nor she has any criminal antecedents. She belongs to a poor family of the locality, as such, she deserves to be granted bail.

On the other hand, learned Additional Government Advocate strongly protested the bail application on the ground that the complainant herself is an eyewitness and wife of the deceased. Her statement could not be disbelieved for want of any other independent evidence, however, he did not rebutted the fact of the present accused-applicant having no criminal antecedents and being her native of the locality having permanent residence there. Further, learned Additional Government Advocate admits that chargesheet has already been submitted in the Court and trial is being commenced.

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 ors. 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 submissions of the learned counsel for the parties, facts of the case, nature of allegations, period of the custody, gravity of the offence and without expressing any opinion on the merit of the case, I find it a fit case of bail as the bail applicant deserves to be released even provide him benefit of the parity, as bail has been granted to the co-accused Shivam Rawat by the co-ordinate bench of this Court. Further, the case of Chandrashekar Rawat co-accused is distinguishable from the case and role of hte present accused-applicant in the incident.

Let applicant - Smt. Kalawati, involved in Case Crime No.737/2018, under Sections - 452, 302 of I.P.C. registered at Police Station - Mohanlalganj, District - Lucknow be released on bail on his furnishing personal bond of Rs.1,00,000/- 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 misuse 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 applicants 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 :- 21.1.2021

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