Deepak vs State Of U.P.
2021 Latest Caselaw 8589 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on - 20.7.2021
 
Delivered on - 26.7.2021
 
Court No. - 79
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21860 of 2021
 
Applicant :- Deepak
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sarvesh Kumar Dubey,Virendra Singh
 
Counsel for Opposite Party :- G.A.,Kuldeep Singh Chahar,Ram Janam Shahi
 

 
with
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20656 of 2021
 
Applicant :- Gitaram
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pradeep Kumar,Chandresh Kumar Chaurasiya,Sarvesh Kumar Dubey,Virendra Singh
 
Counsel for Opposite Party :- G.A.,Kuldeep Singh Chahar
 

 
with 
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21920 of 2021
 
Applicant :- Rajesh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sarvesh Kumar Dubey,Virendra Singh
 
Counsel for Opposite Party :- G.A.,Kuldeep Singh Chahar
 

 
with
 
 
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21922 of 2021
 
Applicant :- Umesh Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sarvesh Kumar Dubey,Virendra Singh
 
Counsel for Opposite Party :- G.A.,Kuldeep Singh Chahar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The applicants in the above referred bail applications are represented by Shri Sarvesh Kumar Dubey, learned counsel for the applicants. Shri Kuldeep Singh Chahar, learned counsel for the informant and learned A.G.A. for the State are appearing in all the above referred applications.

2. With the consent of learned counsel for the parties, all the above referred bail applications were heard together and are being decided by a common judgment.

3. Hari Om Singh - the complainant, lodged the above referred First Information Report against the above referred four applicants and one co-accused Rajeev, who has already been granted bail by this Court, alleging that all the named accused came inside the house and assaulted the four persons of the first informant side who were sitting inside the house. In the First Information Report, it was specified that applicant - Gitaram caused injuries to injured Dharamveer Singh by lathi, applicant - Deepak caused injuries to Dharamveer and Khushi Ram by hockey, applicant - Rajesh caused gun shot injury to injured Pappu @ Hardam Singh, who died on the spot and applicant - Umesh shot firearm to injured - Kapil Kumar.

4. In support of the prayer for grant of bail, learned counsel for the applicants submitted that :-

(i) It was a case of free fight. From the side of complainant, one person died and three persons were got injured whereas six persons were injured from the accused side.

(ii) Application for registration of First Information Report, filed from the side of the applicants, is still pending before the competent court. Applicant - Gitaram, is aged about 70 years.

(iii) The allegations of causing firearm injury by the applicant - Umesh to Kapil Kumar was not supported in the medical evidence because according to the post-mortem report, deceased had suffered two injuries which were found to be lacerated wound. In order to cover up the prosecution story and to match with the medical evidence, the statement of the alleged eye-witness - Khushi Ram was recorded wherein an iron rod was attributed to the applicant - Umesh, who was earlier attributed the firearm. Therefore, it is apparent that the genesis of the occurrence was concealed.

(iv) Applicant - Gitaram and Deepak have allegedly caused injuries to the injured Dharamveer and Khushi Ram. The injured persons, from the side of the accused party were also examined. One of the injured has got fracture. Learned counsel also seeks parity with the order whereby the co-accused - Rajeev was granted bail by this Court, vide order dated 10.6.2021, passed in Criminal Misc. Bail Application No.22287 of 2021. It is also submitted that at this stage, it cannot be determined that who were the aggressor.

5. Learned A.G.A. and learned counsel for the informant have vehemently opposed the prayer of bail and submitted that accused persons were aggressor, who came armed with firearm, lathi and iron rod and assaulted person sitting inside the house of the first informant. During the occurrence, one person died and three persons got injured. The injured persons have received many injuries. Injured - Khushi Ram has received three lacerated wound, injured - Dharamveer has received one lacerated wound on head. So far as, injured - Kapil is concerned, he has received firearm injuries on stomach. The deceased received two lacerated wound on the left scalp. It is further submitted that from the nature of injuries, it is apparent that the applicants and other co-accused have formed unlawful assembly and in furtherance of their common object, came and assaulted persons from the complainant side in which one person died and three persons received injuries on vital part also. So far as, bail granted to the co-accused Rajeev is concerned, it was submitted that no specific reason is assigned for granting bail and that parity is not a sole ground to grant bail. It is also pointed out that alleged injuries, sustained by the persons from the accused side, are on the basis of a certificates, which were prepared on telephone call, and therefore, the bail applications are liable to be rejected.

6.(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.

(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner.

(C) The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

7. Considering the submissions and material on record, it is apparent that the applicants and other co-accused, having previous enmity, have formed unlawful assembly and in the furtherance of common object, attacked the persons from the complainant side at their house with lathi, iron rod, hockey and firearm, which resulted into the death of one person and caused multiple injuries to three persons. Prima facie, it cannot be said that it was a free fight even on the basis of the alleged injury reports of persons from accused side which were prepared on the next date of occurrence and that till date, no First Information Report is lodged on behalf of the applicants. Prima facie, it cannot be said that it was a case of cross version also. The order, whereby bail is granted to the co-accused Rajeev has not assigned any specific reasons and it appears that relevant material was not brought into the notice of the co-ordinate Bench of this Court and that parity is not a sole ground to grant bail.

8. Considering the above referred discussion and that it was a case where one person died and three persons got injured with multiple injuries, prima facie, the allegations against the applicants are grievous in nature. Therefore, no case for bail is made out.

9. Hence, the all bail applications are rejected.

Order Date :- 26.7.2021

Rishabh