Allahabad High Court
Dinesh Sharma vs State Of U.P. on 12 January, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 34
Case :- BAIL No. - 9209 of 2020
Applicant :- Dinesh Sharma
Opposite Party :- State of U.P.
Counsel for Applicant :- Sukh Deo Singh,Paritosh Shukla
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the bail-applicant Sri Sukh Deo Singh, Advocate and learned A.G.A. for the State Ms. Jan Laxmi Tiwari, Advocate and perused the record.
The present bail application is filed on behalf of the accused-applicant-Dinesh Sharma, who is involved in Case Crime No.86 of 2020, under Sections 304 and 201 of I.P.C., registered at Police Station Kandhai, District Pratapgarh.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Additional Sessions Judge-I, Pratapgarh vide order dated 07.10.2020. A copy of the bail application has already been received in the office of learned G.A.
Counter affidavit on behalf of the State is filed in the Court, providing copy thereof to learned counsel for the bail-applicant. Learned counsel for the bail-applicant submits that there is nothing new in the counter affidavit, therefore, rejoinder affidavit is not needed to be filed.
Learned counsel for the bail-applicant further submits that the present bail-applicant is not related with the crime with which he is arraigned. He further submits that the victim was in a drunken position and, as such, had a quarrel with the wife of co-accused Nanhe Sharma who was a truck driver with whom he was working as cleaner. They all were assembled there on the festive occasion under the effect of liquor, the deceased was hurling threats to cut his neck with a razor possessed with him and left the house. When he did not come and searched by the Nanhe and the present applicant, he was found fallen on road, injured with cut wound on the neck. Both of them with a view to save life of deceased by wrapping a cotton around the lacerated wound on the neck alongwith other inmates of the house. Subsequently, he died of the wound. Nanhe Sharma, the co-accused, has been granted bail by a co-ordinate Bench of this Court vide order dated 26.11.2020 passed in Criminal Misc. Application No.9871 (B) of 2020.
Learned A.G.A. for the State submits that no doubt there is no direct evidences in the matter but so far as the circumstantial evidences are concerned, there is ample opportunity, as shown by the evidences, to commit crime under Section 304 I.P.C. alongwith other element of the house when the deceased was in a drunken position and was last seen with them. So far as the plea of taking defence of hurling threats by deceased to cut his throat is concerned, the same is subject matter of proof on cogent evidence in trial.
On perusal of the record, first information report lodged by the brother of the deceased, post-mortem report, ante-mortem injuries and the statements of witnesses with regard to the incident recorded by the Investigating Officer, it is amply clear that the present accused-applicant was also present on the festive occasion of Holi in the house of his brother-in-law, the co-accused, Nanhe and his real sister, where the deceased was also present in drunken state. He has no previous enmity nor any criminal antecedent, therefore, no express motive exists for committing murder of the deceased by him. In the case of circumstantial evidences, unless the prosecution succeeds in proving the link of circumstances as an unbroken chain of incidents exclusively indicating towards the accused and the none else, he could not be taken as guilty. The entire trial is open for the prosecution to prove its case beyond reasonable doubts.
Therefore, without making any comment as to the merit of the case and complicity of the accused-applicant in the incident, I find force in the submission of learned counsel for the bail-applicant for grant of bail at this stage. Moreover, on the same set of facts and circumstances, an equally circumstanced co-accused-Nanhe Sharma has already been granted bail vide order dated 26.11.2020 by a co-ordinate Bench of this Court, therefore, the present accused-applicant is also entitled to the benefit of parity.
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.
Looking into the role, complicity of the accused-applicant in the offence, the prima facie case without making any comment as to the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Dinesh Sharma) involved inCase Crime No.86 of 2020, under Sections 304 and 201 of I.P.C., registered at Police Station Kandhai, District Pratapgarh 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 :- 12.1.2021
Saurabh
