Allahabad High Court
Vishnu Sharma vs State Of U.P. on 27 January, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27811 of 2020
Applicant :- Vishnu Sharma
Opposite Party :- State of U.P.
Counsel for Applicant :- Ajay Kumar Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Ajay Kumar Srivastava, learned counsel for the applicant and Sri Janardan Prakash, learned AGA for the State.
2. This is second bail application on behalf of the applicant-Vishnu Sharma.
3. Learned counsel for applicant submits that due to Corona, witnesses have not been examined before the learned Sessions Court and therefore, on the ground of Corona, applicant-Vishnu Sharma be enlarged on bail. He has raised several other pleas like late recovery of weapon, there being no direct nexus between the recovery and the incident and has also read statement under Section 161 as was given by mother and brother of the deceased. He places reliance on the judgment of Supreme Court in case of Mustkeem @ Sirajudeen vs. State of Rajasthan, (2011) 11 Supreme Court Cases 724, and submits that Supreme Court has laid down a law as what is admissible under Section 27 of the Evidence Act, i.e., the information leading to discovery and not any opinion formed on it by prosecution. Similarly, it is submitted that when witness to the recovery turns hostile, then for the failure of the prosecution to establish as to why none of the local persons living close by were not called to be witness and there being overwriting on recovery of memos was treated to be a doubtful circumstance.
4. Reading para 24 of the judgment, it is submitted that Supreme Court placing reliance on its earlier judgment in Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, has summarized certain salient features in the matter of circumstantial evidence and when these issues are taken into consideration, then it is a fit case to enlarge the applicant on bail.
5. Sri Janardan Prakash, in his turn, reads 161 statement of neighbour of the present applicant-Vishnu Sharma to the effect that his neighbour Subhash Chand Sharma categorically deposed that he resides in the house adjacent to that of accused-Vishnu Sharma. On 09.05.2019 at night, he had heard cries of wife of Vishnu Sharma, and Vishnu Sharma fighting over some issues and thereafter had heard a voice of fire arm. Thereafter, police had arrived, but Vishnu Sharma absconded from the scene. Reading such evidence, it is submitted that firstly in the second bail, only change circumstances are to be seen and secondly, there is plethora of evidence apart from the recovery of fire arm allegedly used in the incident to deny bail to the applicant, if he is enlarged on bail, then he may try to influence the witnesses and effect the prosecution case adversely.
6. After hearing learned counsel for the parties and going through the record, firstly, the order-sheet has been produced only upto 09.07.2020 to show that Vishnu Sharma was not produced from jail. But no order-sheet has been produced after the said date.
7. Case of Mustkeem @ Sirajudeen (supra), is a matter of criminal appeal after trial was concluded and Supreme Court was in a position to appreciate the evidence which was led before the trial court. In the present case, ratio of this judgment will not be of any benefit to the applicant, inasmuch as trial is yet to be completed and evidence on record is to be appreciated by the concerned Sessions Judge.
8. Statement of brother and mother of the deceased as has been read out by the learned counsel for the applicant are of not much relevance at this stage of second bail, especially, when there is direct circumstantial evidence of recovery of fire arm from the possession of the present applicant and in the opinion of this Court, there are no changed circumstances to enlarge the applicant on bail.
9. Therefore, second bail application fails and is dismissed.
Order Date :- 27.1.2021
Vikram/-
