Upendra Kumar vs State Of U.P.
2022 Latest Caselaw 9345 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 68
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48041 of 2021
 

 
Applicant :- Upendra Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ghan Shyam Das,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Anshul Tiwari
 

 
Hon'ble Rajiv Gupta,J.

Heard Shri Kamal Krishna, Senior Advocate assisted by Shri Ghan Shyam Das, learned counsel for the applicant, learned AGA for the State, Shri Anshul Tiwari, learned counsel for the first informant and perused the record.

This is second bail application. The first being Criminal Misc. Bail Application No. 44747 of 2018 was rejected by me on merits vide order dated 15.12.2020.

This bail application has been filed by the applicant Upendra Kumar seeking bail in Case Crime No. 373 of 2018, under Sections 147, 148, 149, 307, 302, 34 IPC, Police Station Bewar, District Mainpuri.

As per the allegations made in the FIR lodged by Raghuraj Singh, it is alleged that on 02.08.2018 at about 6:30 PM, while first informant along with his brothers Durvijay and Rajnesh were sitting on the Chabutara in front of his house, then Raghav reached there and asked Rajnesh to accompany him, who, on his request, went with him, however on the way, when they had covered 20-25 paces, one Bolero vehicle came and halted there and applicant along with six others alighted from the said vehicle, all armed with country-made pistol. Co-accused Rajan asked to caught hold of him, however, his brother Rajnesh tried to his escape but he was caught hold of by co-accused Raghav and the applicant along with five other co-accused opened indiscriminate firing and further, applicant Upendra Kumar and Rajan, who were armed with country-made pistol, fired upon his brother Rajnesh on his chest, which hit him and he fell down. On making an attempt to rescue him, they were also fired upon by the assailants with an intention to kill, however, they somehow rescued themselves and the assailants left the place by Bolero vehicle and his brother Rajnesh died instantaneously. The said Bolero was infact owned by the applicant Upendra Kumar.

Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.

Learned counsel for the applicant has next submitted that the applicant is in jail since 25.08.2018 and the trial has not yet been concluded despite rejection of his first bail application and as such, on the ground of his long incarceration in jail, he be released on bail.

In order to buttress his arguments, Learned counsel for the applicant has next drawn the attention of the Court to the paragraph no.19 of the judgment passed by Hon'ble Apex Court in Criminal Appeal No. 98 of 2021 (Union of India Vs. K.A. Najeeb), wherein it has been observed as under :-

"We are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the period spent by him in custody and the unlikelihood of the trial being completed anytime soon, the High Court appears to have been left with no other option except to grant bail. An attempt has been made to strike a balance between the appellant's right to lead evidence of its choice and establish the charges beyond any doubt and simultaneously the respondent's rights guaranteed under Part III of our Constitution have been well protected."

In view of the aforesaid observations, learned counsel for the applicant has prayed that the applicant has been in jail since 25.08.2018 and has no criminal history to his credit, he be released on bail.

Per contra, learned AGA as well as learned counsel for the first informant has vehemently opposed the prayer for bail and has submitted that specific role of firing upon the deceased by country-made pistol in a most dare devil manner has been assigned to the applicant. Post-mortem report also corroborates the prosecution story and the trial is already in progress and as such, prayer for releasing the applicant on bail be rejected.

Having considered the rival submissions made by learned counsel for the parties and on perusal of the record, it is evident that this Court vide order dated 30.05.2022 had directed the trial court to send the status report of instant Sessions Trial No. 301 of 2018 (State Vs. Upendra Kumar). Pursuant to the said order passed by this Court, the trial court vide letter dated 02.06.2022 has informed this Court that co-accused Raghav @ Lajja Ram had not been appearing before the court and as such, proceedings under Section 82/83 CrPC was initiated against him. Consequent to which, he appeared before the court and was sent to jail and the witnesses were summoned. Thereafter, an application was filed for clubbing the instant sessions trial number with that of the other co-accused, so that both the trial be speedily heard and decided together. Pursuant to the said application, both the session trials were clubbed together and the date was fixed for adducing evidence and warrants have been issued against the witnesses and the trial is stated to be in progress, however, learned counsel for the applicant has not brought on record subsequent status of the trial and has only submitted that the warrants for ensuring the attendance of the witnesses have been issued by the trial court.

It is germane to point out here that from the allegations made in the FIR as well as from the statement of the witnesses recorded during the course of investigation, specific role of firing upon the deceased by a country-made pistol in a most dare devil manner has been assigned to the applicant causing his instantaneous death. As per the post-mortem report, the cause of death has been noted to be haemorrhage shock due to fire arm injury, which has been specifically assigned to the applicant. The offence is punishable under Section 302 IPC and the applicant on conclusion of trial may be sentenced for life imprisonment.

The judgment cited by learned counsel for the applicant is clearly distinguishable on facts as in the said case, High Court had granted bail to the applicant, which order was sought to be set aside by the Hon'ble Apex Court. The said case is only under Section 307 and other allied offences, whereas the present one is under Section 302 IPC punishable with death or life imprisonment. In the present case, looking to the nature, gravity, seriousness of the offence, role of the applicant and the fact that his first bail application has already been rejected on merits by this Court, which has not been challenged at all by the applicant and only on the ground of the delay in the trial, present bail is being sought, though from the material on record, it is evident that the accused persons are also responsible for delaying the trial and the trial court is making all efforts to record the statement of the witnesses, for which warrants have also been issued.

It is true that long incarceration may be one of the grounds for releasing the applicant on bail but at the same time, the nature, gravity and seriousness of the offence and it societal impact and the role assigned to the applicant, the ultimate sentence that may entail cannot be given a complete go-bye.

In the backdrop of the aforesaid facts and circumstances, particularly in view of the fact that the applicant is the main shooter in the present case directly responsible for causing instantaneous death of the deceased in a most dare devil manner and looking to the nature, gravity, seriousness of the offence and its societal impact, I am not inclined to grant bail to the applicant at this stage. This second bail application is also rejected.

However, the trial court is directed to conclude the trial by recording the statement of the witnesses on day-to-day basis strictly in compliance of Section 309 CrPC and S.S.P., Mainpuri is also directed to ensure that the witnesses are produced before the trial court and the trial court shall make all endevours to conclude the trial preferably within a period of two months from the date of receipt of certified copy of this order, without granting any unnecessary adjournment to either of the parties provided there is no other legal impediment in concluding the trial.

Order Date :- 5.8.2022

Nadim