Usha Devi vs State Of U.P.
2022 Latest Caselaw 1571 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1693 of 2022
 

 
Applicant :- Usha Devi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Subhash Chandra Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Subhash Chandra Mishra, learned counsel for the applicant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of the applicant Usha Devi under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 38 of 2021 for offence punishable under Sections 302, 201 of the Indian Penal Code, registered at Police Station Handia District Prayagraj during pendency of the trial, after rejecting the bail application of the applicant by the Sessions Judge, Prayagraj vide order dated 25.06.2021.

Brief facts of the case are that the First Information Report dated 27.01.2021 at 19;29 hours has been lodged by the son of the deceased stating therein that his father left his home on 27.01.2021 in the morning at about 11 am saying that he is going to meet with Rakesh Kumar Bind, resident of village Jhirihiri and will back soon thereafter. When he did not return, the first informant went to the house of Rakesh Kumar Bind in search of his father. On enquiry, it was revealed that Rakesh Kumar Bind was not present at home but the applicant, Usha Devi (wife of Rakesh Kumar Bind) was present at house. On further enquiry from the neighbours, it was disclosed that his father had come to the house of the applicant and his cycle was seen standing infront her house which created doubt in the mind of the first informant. When the first informant attempted to see inside the house then he saw dead body of his father was kept under the cot.

After lodging the first information report, Inquest of the death body of the deceased was conducted on 27.1.2022 at 22;00 hours, as per inquest report, contusion over right eye, blood ozed from both ears which covered neck and and mud covered the body. Post Mortem of the body of the deceased was conducted on 28.01,2021 at 12;15 hours, as per mortem report, lacerated wound 1x 05 cm outer part of right eyebrows, contusion 1x1 cm on right medial part were on the persons of the deceased. After recording the statements of prosecution witnesses, charge sheet has been filed against the applicant on 17.02.202. The applicant was arrested on 28.01.2022.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that age of deceased was 65 years and the age of applicant is 36 years at the time of incident. It is further submitted that cause of death of the deceased could not be ascertained but immediate cause of death is cardio-pulmonary arrest. it is further submitted that cycle of the deceased was found standing infront of house of the applicant. It is further submitted that viscera was not preserved at the time of post- mortem.

He has next argued that the applicant has no criminal history to his credit. If the applicant is released on bail, he shall not misuse the liberty of bail. The applicant is not convicted in cognizable offence by any court.

Per contra, learned AGA has supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) age of deceased was 65 years and the age of applicant is 36 years at the time of incident;

(b) cause of death of the deceased could not be ascertained but immediate cause of death is cardio-pulmonary arrest ;

(c) cycle of the deceased was found standing infront of house of the applicant;

(d) viscera was not preserved at the time of post-mortem.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicant, Usha Devi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

(iii) 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 of Cr.P.C.

(iv) 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 the trial court.

(v) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel.

(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 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 in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led, unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 27.4.2022

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