Allahabad High Court
Rustam Ali 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. - 10040 of 2020
Applicant :- Rustam Ali
Opposite Party :- State of U.P.
Counsel for Applicant :- Shailendra Pathak
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the bail-applicant Sri Shailendra Pathak, Advocate and learned A.G.A. for the State Sri Adarsh Shukla, Advocate and perused the record.
The present bail application is filed on behalf of the accused-applicant-Rustam Ali, who is involved in Case Crime No.279 of 2020, under Sections 304 of I.P.C., registered at Police Station Khairighat, District Bahraich.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Bahraich vide order dated 28.09.2020. A copy of the bail application has already been received in the office of learned G.A.
Counter affidavit on behalf of the State and rejoinder affidavit on behalf of the applicant have already been filed and exchanged between the parties appearing before the Court. As such, the case is riped for hearing.
Learned counsel for the bail-applicant submits that the name of the present accused-applicant alongwith others alleged to have committed the crime in question, comes into light from the confessional statement of the co-accused Rajendra otherwise the present accused-applicant has no role or participation in the crime. He further submits that there is a general allegation against all the accused of beating the deceased who was caught by the co-accused Rajendra claiming him a thief on the date of incident. Learned counsel further submits that the post-mortem report shows ante-mortem injuries as follows :-
i) Contusion 3x2 cm present over occipital area.
ii) Contusion 2x2 cm present over left side of skull, 6 cm left ear.
iii) Multiple contusion present over whole of upper and lower limbs (both) and whole back and buttock of measuring size 6 cm to 3 cm to 2 cm x 1 cm.
In the context of above, learned counsel for the bail-applicant submits that the cause of death is Coma due to ante mortem head injury.
Since there is no statement as to the holding of any specific arm and/or causing infliction thereof on the body of the deceased in the course of commission of incident of beating, therefore, learned counsel for the bail-applicant, claims innocence and non-involvement of the accused-applicant in the crime. He further submits as to the want of criminal antecedents of the applicant.
On the other hand, learned A.G.A. for the State submits that since in the incident in question, the present accused-applicant alongwith other co-accused is arraigned under the charge of committing the offence under Section 304 of I.P.C. by beating the deceased alongwith others alleging him as thief, it itself is an offence because if the person is caught as thief, without handing over him to the police, they began to beat him and done him to death. Due to this even without assigning any individual liability of the persons named and arraigned in the crime, he is equally liable in committing the crime. Therefore, the accused-applicant could not be termed innocent.
On hearing the parties, it is amply clear at this stage that the present accused-applicant could not be specifically and particularly assigned with inflicting any bodily injury upon the deceased and the allegations made by the prosecution unless proved by cogent and sufficient evidence in the trial, he could not be taken as guilty. Moreover, the present accused-applicant who has not been assigned with any previous and criminal antecedents, his innocence may be reasonably presumed to exist in his favour. A fair opportunity of contesting the case to defend him is just and proper to be given in the trial. The equally circumstanced co-accused Abdul Hasan vide order dated 14.12.2020 and Rajendra, Shrawan and Buddhi Lal vide order dated 18.11.2020 have been enlarged on bail by the co-ordinate Benches of this Court.
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 (Rustam Ali) involved in Case Crime No.279 of 2020, under Sections 304 of I.P.C., registered at Police Station Khairighat, District Bahraich 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
