Sachin vs State Of U.P.
2022 Latest Caselaw 801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 66
 

 
1. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40042 of 2021
 
Applicant :- Sachin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shiv Raj Singh,Prakash Chandra Srivastava,Raghubir Singh
 
Counsel for Opposite Party :- G.A.,Aditya Kumar Tripathi,Narendra Singh
 
Alongwith
 
2. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33294 of 2021
 
Applicant :- Dharmveer @ Bablu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shive Datta Yadav,Akash Mishra
 
Counsel for Opposite Party :- G.A.,Aditya Kumar Tripathi,Narendra Singh
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Prakash Chandra Srivastava, the learned counsel for applicant, Sachin, Mr. Akash Mishra, the learned counsel for applicant, Dharmveer @ Bablu, the learned AGA for State and Mr. Narendra Singh, the learned counsel for first informant.

2. These bail applications have been filed by applicants, Sachin and Dharmveer @ Bablu seeking their enlargement on bail in Case Crime No.82 of 2021, under Sections 147, 302/34 IPC, Police Station Chaubiya, District Etawah, during the pendency of trial.

3. Perused the record.

4. It transpires from record that in respect of an incident which is alleged to have occurred on 11.06.2021 a delayed FIR dated 12.06.2021 was lodged by first informant, Sri Indrapal Singh and was registered as Case Crime No.0082 of 2021, under Sections 147, 302/34 IPC, Police Station Chaubiya, District Etawah. In the aforesaid FIR, six persons namely, Sachin, Deepak, Adesh, Dharmveer, Vinod and Ajay have been nominated as named accused whereas one unknown person has also been arraigned as an accused.

5. In brief, the prosecution story as unfolded in FIR is to the effect that on 11.06.2021 at around 06:00 p.m. Anil Kumar son of first informant went with Sachin and Deepak on their motorcycle to settle the accounts. While son of the first informant was traveling in the company of Sachin and Deepak, he was seen by Rakesh Kumar, Ram Vilas and Raju. Thereafter son of the first informant was put to death. Upon receiving aforesaid information he came to Gopalpur where he saw the dead body of his son in front of the house of Deepak.

6. After lodging of the aforementioned FIR, investigating officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC.

7. The inquest (panchayatnama) of the body of the deceased was conducted on 12.06.2021. In the opinion of witnesses of inquest (panch witnesses), nature of death of deceased was homicidal. Thereafter the postmortem of the body of the deceased was conducted on 12.06.2021. In the opinion of autopsy surgeon, the cause of the death of deceased was shock and haemorrhage due to antemortem injury. The autopsy surgeon found following antemortem injuries on the body of the deceased:-

"1. A contusion 5.0 cm x 4.0 cm on Rt. side of thiporal region.

2. Contusion 6 cm x 4 cm left temporal region.

3. Contusion 8.0 cm x 4.0 cm on left side of forehead including left eye.

4. Abrasion 4.0 cm x 1.0 cm Rt. side of chest laterally 7.0 cm below Rt. axilla.

5. Contusion 10 cm x 4 cm present on left front.

6. Contusion 12 cm x 1 cm present Rt. upper arm.

7. Contusion 8 cm x 3 cm on Right posterion present of arm.

9. Contusion 6 cm x 2 cm present right porteor arpit of arm.

10. Multiple contusion on whole buttock.

11. Contusion 10 cm x 3 cm right back of thigh.

12. Unterior 4 cm x 4 cm left back of thigh.

13. A lacerated wound 2 cm x 1 cm present on left leg 15 cm upper left lower joint.

14. A lacerated wound 3 cm x 1 cm present left leg 9 cm above left of joint.

15. A lacerated wound 2 cm x 1 cm present on right leg 10 cm above Rt. ankle joint."

8. Thereafter the investigating officer examined the following witnesses under Section 161 CrPC, namely; Indrapal Singh, Sudesh, Rakesh Kumar, Ram Vilas, Raju, Yogendra Yadav, Mohit Kumar, Vipin Kumar, Dr. Nikhil Kumar, Dr. Abdul Qadir, Inspector Ravendra Singh, Constable 350 Gaurav Vashisth, H.C. 445 Surendra Bahadur Singh, Mukesh Kumar Solanki and Santosh Kumar.

9. On the basis of above and other material collected by the investigating officer during course of investigation he came to the conclusion that the complicity of named accused is established in the crime in question. He, accordingly, submitted that chargesheet dated 19.08.2021 whereby five of the named accused namely, Sachin, Adesh, Dharmveer, Vinod Kumar and Ajay @ Ajay Babu have been chargesheeted under Sections 147, 302/34 IPC whereas one of the named accused namely, Deepak was found to be a juvenile. After submission of chargesheet cognizance was taken upon same by the court concerned. As offence complained of is triable by the Court of Sessions, concerned Magistrate accordingly committed the case to the Court of Sessions.

10. At the very outset, Mr. Prakash Chandra Srivastava and Mr. Akash Mishra, the learned counsel for applicants jointly submit that out of the five chargesheeted accused, three have already been enlarged on bail. Details of the same are as under:-

"1. Criminal Misc. Bail Application No.42349 of 2021 (Ajay @ Ajay Babu Vs. State of UP) vide order dated 16.11.2021-

"Heard learned Counsel for the applicant, learned AGA for State, Sri Prashant Verma, Advocate holding brief of Sri Narendra Singh, learned Counsel for the applicant and perused the material available on record.

Accused-applicant, involved in Case Crime No.82 of 2021, under Sections 147, 302, 34 I.P.C., Police Station Chaubiya, District Etawah, applied for bail.

Learned counsel for the applicant submits in following manner :-

(i) Applicant is innocent and has been falsely implicated in the present case. He has committed no offence. Entire prosecution story is false and fake.

(ii) Although accused-applicant is named in the FIR but he has no concerned with the present crime. Informant himself is not an eye witness of the incident. He is only witness of last seen against Sachin and Deepak. There is nothing on record who has seen the incident or accused killing the deceased Anil Kumar. There is general allegation against all the accused persons. FIR is against seven accused persons while the deceased sustained fifteen injuries. FIR was registered after recovery of dead body.

(iii) Applicant is in jail since 13.06.2021, having no criminal history.

(iv) There is no possibility of the applicants fleeing away from the judicial process or tampering with the witnesses. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and they will continue present before the Court till disposal of the trial. Due to heavy pendency of cases in the Court, there is no possibility of early conclusion of the trial.

Sri Prashant Verma, Advocate holding brief of Sri Narendra Singh, learned Counsel for the informant is present but he did not utter a single word to oppose the bail application.

Learned A.G.A. opposed the prayer for bail and submitted that accused-applicant is named in the FIR. Victim deceased sustained 15 injuries on his person but admitted that there is general allegation and no specific role has been assigned to any of the accused. He could not show any witness who has seen the accused assaulting the victim or any other circumstantial evidence against the applicant.

Considering the facts and circumstances of the case, rival contention of learned counsel for the parties, detention of applicant in jail, severity of punishment in case of conviction, role of present applicant in incident, evidence collected by I.O. during investigation, injuries found on the person of victim and without commenting upon the merit of the case, applicant deserves bail.

Accordingly, bail application is allowed.

Let applicant Ajay @ Ajay Babu be released on bail in the aforesaid case crime on his furnishing a personal bond and two reliable sureties and filing an undertaking to the satisfaction of the court concerned subject to the following conditions:-

1. The applicant shall not tamper with the evidence or threaten the witnesses.

2. The applicant shall co-operate with the trial and shall not seek any adjournment on the dates fixed for charge, evidence when the witnesses are present in the court, statement under Section 313 Cr.P.C. and argument.

3. During trial, he shall not indulge in any criminal activities or case.

In breach of any condition enumerated above, Trial Court shall be at liberty to treat it as abuse of liberty of bail and pass appropriate orders in accordance with law."

2. Criminal Misc. Bail Application No.40936 of 2021 (Aadesh @ Dinesh Kumar Vs. State of UP) vide order dated 22.11.2021-

"Heard over bail application moved by applicant, Aadesh @ Dinesh Kumar, in Case Crime No. 82 of 2021, under Sections- 147, 302/34 I.P.C., P.S. Chaubiya, District- Etawah.

Learned counsel for the applicant argued that the accused-applicant is innocent; he has been falsely implicated in this very case crime number and is languishing in jail since 9.7.2021; he is of no criminal antecedent and there is no likelihood of fleeing from course of justice or tempering with evidence in case of release on bail; first information report was got lodged on 12.6.2021 by Sri Indrapal Singh, who is not eyewitness account of the occurrence; it was lodged against six named and one unknown person, with accusation of giving assault, resulting death of deceased; the role of taking the deceased from his home was assigned to Sachin and Deepak and after taking to village Gopalpur, an assault was said to be made by Adesh, Dharamveer, Vinod, Ajay and many others by lathi-danda, which was said to be witnessed by Rakesh Kumar, Ramvilash and Raju i.e. witnesses of taking of deceased is from his village to village Gopalpur, has been said in first information report; but the witnesses of Gopalpur, where this occurrence has been said to taken place, is not there; no specific role of giving assault, resulting this death, against applicant is not there; the injuries are written in autopsy examination report and who caused fatal injury is not there; the witness of village Gopalpur i.e. Lata says another story, wherein, the public of village did this assault owing to illicit relation in between Lata and the deceased; co-accused Ajay @ Ajay Babu, with similar accusation, has been enlarged on bail vide order dated 16.11.2021 in Criminal Misc. Bail Application No. 42349 of 2021, by Co-ordinate Bench of this Court. Hence, bail has been prayed for.

Learned counsel for the informant has vehemently opposed with this contention that applicant is real brother of one of the accused, who took deceased from his village to village Gopalpur and Lata is the eyewitness of the occurrence; many other bail applications are also pending in this very case crime number, hence, this be connected with them and a time for filing counter affidavit be given.

Learned AGA has vehemently opposed, but could not oppose this fact that the applicant is of no criminal antecedent and co-accused Ajay @ Ajay Babu, has been enlarged on bail, as above.

Having heard learned counsels for both sides and gone through materials placed on record as well as considering all above facts and circumstances, the bail granted to co-accused Ajay @ Ajay Babu, as above, the nature of accusations, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but, without commenting on merits of the case, a case for bail is made out.

Accordingly, the bail application is allowed.

Let the applicant, Aadesh @ Dinesh Kumar, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties, each, in the like amount, to the satisfaction of the court concerned, subject to the following conditions:

1. The applicant will not tamper with the evidence.

2. The applicant will not indulge in any criminal activity.

3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.

4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.

In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail."

3. Criminal Misc. Bail Application No.41311 of 2021 (Vinod Kumar Vs. State of UP) vide order dated 22.11.2021-

"Heard over bail application moved by applicant, Vinod Kumar, in Case Crime No. 82 of 2021, under Sections- 147, 302, 34 I.P.C., P.S. Chaubiya, District- Etawah.

Learned counsel for the applicant argued that the accused-applicant is innocent; he has been falsely implicated in this very case crime number and is languishing in jail since 9.7.2021; he is of no criminal antecedent and there is no likelihood of fleeing from course of justice or tempering with evidence in case of release on bail; first information report was got lodged on 12.6.2021 by Sri Indrapal Singh, who is not eyewitness account of the occurrence; it was lodged against six named and one unknown person, with accusation of giving assault, resulting death of deceased; the role of taking the deceased from his home was assigned to Sachin and Deepak and after taking to village Gopalpur, an assault was said to be made by Adesh, Dharamveer, Vinod, Ajay and many others by lathi-danda, which was said to be witnessed by Rakesh Kumar, Ramvilash and Raju i.e. witnesses of taking of deceased is from his village to village Gopalpur, has been said in first information report; but the witnesses of Gopalpur, where this occurrence has been said to taken place, is not there; no specific role of giving assault, resulting this death, against applicant is not there; the injuries are written in autopsy examination report and who caused fatal injury is not there; the witness of village Gopalpur i.e. Lata says another story, wherein, the public of village did this assault owing to illicit relation in between Lata and the deceased; co-accused Ajay @ Ajay Babu, with similar accusation, has been enlarged on bail vide order dated 16.11.2021 in Criminal Misc. Bail Application No. 42349 of 2021, by Co-ordinate Bench of this Court. Hence, bail has been prayed for.

Learned counsel for the informant has vehemently opposed with this contention that applicant family member of one of the accused, who took deceased from his village to village Gopalpur and Lata is the eyewitness of the occurrence; many other bail applications are also pending in this very case crime number, hence, this be connected with them and a time for filing counter affidavit be given.

Learned AGA has vehemently opposed, but could not oppose this fact that the applicant is of no criminal antecedent and co-accused Ajay @ Ajay Babu, has been enlarged on bail, as above.

Having heard learned counsels for both sides and gone through materials placed on record as well as considering all above facts and circumstances, the bail granted to co-accused Ajay @ Ajay Babu, as above, the nature of accusations, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but, without commenting on merits of the case, a case for bail is made out.

Accordingly, the bail application is allowed.

Let the applicant, Vinod Kumar, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties, each, in the like amount, to the satisfaction of the court concerned, subject to the following conditions:

1. The applicant will not tamper with the evidence.

2. The applicant will not indulge in any criminal activity.

3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.

4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.

In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail."

11. On the aforesaid premise, it is urged that case of present applicants is similar and identical to that of the aforesaid chargesheeted accused who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of the present applicants can be distinguished from that of the aforesaid chargesheeted accused who have already been enlarged on bail. It is thus urged that for the facts and reasons mentioned in the bail orders 16.11.2021 and 22.11.2021 respectively, applicants are also liable to be enlarged on bail on the ground of parity.

12. Mr. Prakash Chandra Srivastava, learned counsel for applicant, Sachin contends that though the applicant, Sachin is a named and a chargesheeted accused but he is innocent. Allegations made in the FIR that deceased was last seen in the company of applicants is belied by the statements of Lata wife of Narendra. Copy of the said statement is on record at page-17 of the paperbook. He has also referred to the site plan and spot inspection report on the basis thereof he submits that prosecution story as unfolded in the FIR is prima facie false.

13. Mr. Akash Mishra, the learned counsel for applicant, Dharmveer @ Bablu contends that applicant, Dharmveer @ Bablu is also a named as well as a chargesheeted accused but he is innocent. Applicant has been falsely implicated in aforementioned case crime number. The theory of last seen is not attracted against the applicant, Dharmveer @ Bablu. As such, case of present applicant is on better footing than aforementioned three chargesheeted accused who have already been enlarged on bail. It is further submitted that applicant, Dharmveer @ Bablu has one criminal history of one case being Case Crime No.62 of 2020, under Sections 452, 32, 504, 506, 323 IPC, Police Station Chaubia, District Etawah. The same has been explained in paragraph-14 of the affidavit filed in support of the bail application of the applicant, Dharmveer @ Bablu.

14. It is then contended that applicants are in jail since 09.07.2021 and 13.06.2021. As such, they have undergone more than 8/9 months of incarceration. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall cooperate with the trial.

15. Per contra, the learned AGA for State and the learned counsel for the first informant have opposed these applications for bail. Learned AGA contends that present case is a case of circumstantial evidence and, therefore, the same has to be considered in the light of the parameters laid down by the Apex Court for deciding a case based on circumstantial evidence in Sarad Birdhi Chand Sharda Vs. State of Maharashtra, AIR 1984 SC 1622. On the basis of above learned AGA contends that the parameters laid down in aforementioned judgment are squarely satisfied in the present case. There is a complete chain of event. The motive behind the occurrence is explicit from FIR itself that the named accused, Sachin and Deepak wanted to settle their accounts with the deceased. The deceased was last seen in the company of named accused, Deepak and Sachin. This itself is an incriminating circumstance and, therefore, the burden shifts upon the applicants to explain their innocence. The prosecution case cannot be doubted simply on the basis of solitary witness relied upon by the learned counsel for applicants namely, Lata and the site plan. They, therefore, submit that applicant, Sachin does not deserve any indulgence by this Court. However, they could not dispute the factual and legal submission urged by learned counsel for applicant, Dharmveer @ Bablu in support of his bail application.

16. Having heard the learned counsel for applicants, the learned AGA for State, the learned counsel for first informant and upon consideration of evidence on record, complicity of applicant/accused, accusation made this Court does not find any good ground to enlarge the applicant, Sachin on bail. Accordingly, the bail application of applicant, Sachin stands rejected. However, for the facts and reasons noted above, the applicant, Dharmveer @ Bablu has made out a case for bail. Accordingly, the bail application of the applicant, Dharmveer @ Bablu is allowed.

17. Let the applicant, Dharmveer @ Bablu involved in aforesaid case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

18. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send his to prison.

Order Date :- 8.4.2022

Shahroz