Sushil vs State Of U.P.
2021 Latest Caselaw 6617 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 21
 

 
Case :- BAIL No. - 1662 of 2021
 

 
Applicant :- Sushil
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Madhulika Yadav,Archana
 
Counsel for Opposite Party :- G.A.
 
[In Chamber]
 

 
Hon'ble Vikas Kunvar Srivastav,J.

The case is called out through video conferencing.

Learned counsel Ms. Madhulika Yadav, Advocate on behalf of the accused-applicant and learned Additional Government Advocate Sri Brijendra Vikram Singh, Advocate for the State are connected through video conferencing in virtual hearing of the case.

The present bail application has been filed on behalf of the accused-applicant-Sushil who is involved in Case Crime No. 204 of 2020, under Section 302, 201 IPC, Police Station Maigalganj, District Lakhimpur Kheri.

The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Sessions Judge, Lakhimpur Kheri vide order dated 05.01.2021.

Counter and rejoinder affidavits have already been exchanged between the parties of the case. The case is ripe for hearing.

Heard learned counsel for the parties and perused the material available on record.

Reading over the First Information Report, learned counsel for the accused-applicant submitted that the complainant registered the First Information Report to the effect that on 29.04.2020 at about 8:00 p.m. in the evening, his brother Sadiq Ali had gone to work with Radhey S/o Ayodhya Yadav and did not return home. In the morning it was found that his brother's body was found buried in the soil in the same plot next to Sarvesh Yadav's house. He identified his brother's dead body on the same day by giving information at the police station. Panchayatnama was conducted by the police. The complainant alongwith his family members, had taken the deceased's body to perform the last rites.

Learned counsel for the bail applicant further submitted that the complainant could not come to the police station for lodging the FIR timely due to lock down. It is further alleged that on the day of the incident, Akhilesh Yadav was pouring soil alongwith other tractor drivers in the plot of Sarvesh Yadav and Devi Dayal Yadav, where the dead body of his brother was found. The complainant suspects that Radhey, Sarvesh, Devi Dayal, Akhilesh, Kapil and Ram Singh after killing his brother hid the dead body in the soil.

Learned counsel for the accused-applicant submitted that the accused-applicant is not named in the FIR. He has falsely been implicated in this case. There is no eye witness of the incident. The FIR of the incident is lodged belatedly after one week of the incident. Nothing has been recovered from the possession of the accused-applicant.

Learned counsel further submitted that the accused-applicant is languishing in jail since 31.10.2020 having no criminal history to his credit. Further submission is that there is no possibility of the accused-applicant of fleeing away from the judicial process or tampering with the witnesses. In case the accused-applicant is enlarged on bail, he shall not misuse the liberty of bail.

Learned AGA contended towards the statement of independent witness and native villager, made Annexure-CA-2 Satyaram who for the first time stated that two persons were searching to beat someone with regard to whom they may describe properly. The statement of Lalaram is also recorded by the Investigating Officer who has told that a person in the house of phul Singh committed incident of beating and fled away to whom the son of phul Singh, namely, Kapil Yadav and son of Ram Singh namely, Sushil were searching but they could not searched by reason of darkness in the night. On the basis of this information, Investigating Officer inquired further, wherein Lalaram stated that they Kapil Yadav and Sushil were dragging and beating a person from the house of Sushil to the field of Sarvesh Yadav.

Another witness Mahadev has also repeated the same statement. In any of the statement, the name of present accused-applicant Sushil and Kapil who were dragging and beating the deceased, is not disclosed.

Learned AGA has not argued or submitted any fact with which he can connect the present accused-applicant with killing of deceased-Sadiq Ali. The only suspicion as to the role of present accused-applicant is that the body of the deceased-Sadiq Ali was found embedded below the soil in the field of Sarvesh. This is also notable that Sarvesh Kumar himself moved an application before the SHO, PS Maigalganj, District Kheri about the dead body of one unknown person found beneath the soil of his field when he was levelling his field.

This is also notable, at this stage, that in the First Information Report lodged by brother of the deceased named Sarvesh Yadav and Devi Dayal Yadav with whom the deceased, brother of the complainant, was doing the work of levelling of the soil. He specifically named the aforesaid Sarvesh Yadav and Devi Dayal Yadav and two other persons whose houses were situated near the plot of Sarvesh where the body of the deceased was found and suspected one Radhey who taken away the deceased from his house alongwith him on 29.04.2020 for the said work. As such Radhey was suspected as the person with whom the deceased was last seen live as it reported in the First Information Report that thereafter they could know about the death of deceased on 30.04.2020 only.

Another notable point is that the name of present accused-applicant is taken in confessional statement of the main accused Radhey which was recorded on 10.10.2020 who confessed his own role of killing the deceased with the help of present accused-applicant and co-accused Kapil Yadav. As such, prima facie, the prosecution has not shown the chain of circumstances and events which directly connects and suggests the role of present accused-applicant in killing of the deceased and none else. Therefore, with all certainty, prima facie, it cannot be said that what role has been played by the present accused-applicant, if any, in killing of deceased-Sadiq Ali.

Moreover, the equally circumstanced co-accused, namely, Kapil Yadav, has already been granted bail by Co-ordinate Bench of this Court vide order dated 19.02.2021 passed in Bail No. 2175 of 2021. As such, benefit of parity may also be given to 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 Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.

Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.

Let applicant-Sushil be released on bail in Case Crime No. 204 of 2020, under Section 302, 201 IPC, Police Station Maigalganj, District Lakhimpur Kheri, on his furnishing a personal bond worth Rs. 100,000/- (One lac) 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 misuses 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 :- 24.6.2021

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