Allahabad High Court
Kanhayya Lal vs State Of U.P. on 8 July, 2021
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- BAIL No. - 6579 of 2021
Applicant :- Kanhayya Lal
Opposite Party :- State of U.P.
Counsel for Applicant :- Nijam Ahamad
Counsel for Opposite Party :- G.A.
(In Chamber)
Hon'ble Vikas Kunvar Srivastav,J.
Called out.
Shri Nizam Ahamad, learned counsel for bail applicant and Shri Rajiv Kumar Verma, learned AGA for State are connected for video conferencing.
The present bail application is filed on behalf of the accused-applicant-Kanhayya Lal, involved in Case Crime No.364 of 2020, under Sections 323, 325, 308, 326, 504 & 506 IPC, registered at Police Station Kotwali Tanda District Ambedkar Nagar.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Ambedkar Nagar vide order dated 17.04.2021.
Shri Rajiv Kumar Verma, learned AGA for State informs the Court that he has received his instructions and is ready to argue.
Heard learned counsel for parties and perused the documents.
The FIR is read by learned counsel for bail applicant which is lodged by complainant Shivam that at about 10PM in the night on the date of incident, a ceremony of last rites terahwi was held at the house of a native villager where all the accused persons met with the victim Daya Shanker. The accused persons namely Shivpujan Surjit, Kanhayya Lal, Girjesh and Sanjay including the present accused applicant were all intoxicated under the effect of liquor. They began to abuse in filthy language to the victim. When he forbidden them to abuse they began to beat him with lathi and danda. Even on his hue and cry when other family members ran up to save him they were also beaten by the accused persons.
Learned counsel for bail applicant has drawn the attention of this Court on the statements of one of the injured of the incident dated 14.12.2020, the same is as stated in the FIR, that the victim-Daya Shankar of the incident got serious injuries and was taken to hospital. He also submits that the victim-Daya Shankar was also under the effect of intoxicants of liquor and indulged in altercation with other accused persons. When Daya Shankar did not stop abusing, the accused persons forbade him, they started beating him. By reasons of beatings he got injuries. Learned counsel argued that the entire FIR and statement recorded by the Investigating Officer and other evidences show that there is general allegation of beating against all the accused. There is no specific allegation against the present accused applicant of the role of beating and inflicting the injury on the eyes of the victim Daya Shankar.
Learned counsel for petitioner further submits that even from the statement of the witness it is not disclosed as to who was the aggressor as the accused, other co-accused and victim Daya Shankar were in effect of intoxicants and involved in altercation which turned into violent clashes. As such the responsibility and criminal liability as to the present accused applicant cannot be specifically assigned and he deserves to be granted bail, as he wants to face the trial on the basis of evidence.
Learned counsel further submits that the present accused applicant and the victims are of same village and they are native and neighbors and also there is no any basis to evade from the process of the court and even no criminal history is assigned to them.
Learned AGA on behalf of State opposed the bail application on the basis of instructions received to him. He has not denied the fact that the present accused applicant is not having any criminal antecedents. Further the incident dated 14.12.2020 at about 10:00 PM on the house of one native villager where in the last rite ceremony of his family member, the victim and persons accused applicant met with each other, altercation took place and turned into violent clash. As such learned AGA submits that as per the FIR and evidence collected by the Investigating Officer the accused persons beat brutally to the victim-Daya Shankar due to which he sustained serious injuries in his eye and lost his eyesight, the offenders are equally responsible for the act as they are charged under Section 147 read with 323, 308, 504 and the responsibility cannot be severed.
In rebuttal learned counsel for applicant submitted that unless it is decided by the court that who was the aggressor and who first started the altercation as the allegations are at very crude stage and need to be examined on the basis of evidence available on record, prima facie prosecution has not established its case against the present accused-applicant.
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 her on bail.
Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant-accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Kanhayya Lal), involved in Case Crime No.364 of 2020, under Sections 323, 325, 308, 326, 504 & 506 IPC, registered at Police Station Kotwali Tanda District Ambedkar Nagar be released on bail on his furnishing a 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 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 :- 8.7.2021
J.K. Dinkar
