Rajesh Vishvakarma vs State Of U.P.
2022 Latest Caselaw 22194 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43872 of 2022
 

 
Applicant :- Rajesh Vishvakarma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajesh Kumar Roy Sharma
 
Counsel for Opposite Party :- G.A.,D.M.Tripathi
 

 
Hon'ble Manish Mathur,J.

1. Counter affidavit filed today on behalf of informant is taken on record.

1A. Heard learned counsel for applicant, learned counsel for informant and learned Additional Government Advocate appearing on behalf of State and perused the record.

2. This first bail application has been filed with regard to Case Crime No. 250 of 2022 under Sections 302, 504, 120B IPC, P.S. Dhoomanganj, District Allahabad.

3. As per contents of FIR, incident is said to have taken place on 27th April, 2022 at about 12.15 P.M. when the first informant came to know that his younger brother and nephew have been murdered in the house conjointly owned by applicant and his elder brother Deepak Vishwakarma. It is alleged that the informants younger brother and nephew had been called by Deepak Vishwakarma with regard to settlement of some financial dispute but during course of negotiation, an unknown person barged inside the room whereupon the nominated persons threw chili powder whereafter the unknown person allegedly opened fire resulting in death of first informant's younger brother and nephew.

4. Learned counsel for applicant submits that the applicant has been falsely implicated in the charges levelled against him and the F.I.R. does not indicate any role of applicant at the time of incident. It is further submitted that as per F.I.R,, there are two eye witness accounts namely Imran and Rashool Ahmad and in the statement under Section 161 Cr.P.C. of Rasool Ahmad, for the first time, the name of applicant has been introduced as being present at the time of incident. It is further submitted that subsequently in the additional statement of said eye witness Rashool Ahmad, a picture of the incident has been narrated whereunder as well no role has been attributed to the applicant whereas the role of firing has been attributed to co-accused Deepak and Pawan who have been indicated as identified person in the F.I.R. As such it is submitted that with regard to no role of applicant, there are contradictory statements of alleged witnesses. Attention has been drawn to the fact that although F.I.R indicates Imran to be an eye witness account, subsequently he has been made an accused on the basis of statement of other eye witness Rashool Ahmad in his statement and additional statement under Section 161 Cr.P.C. It has been further submitted that admittedly applicant is an employee of Tata Motors while his elder brother was in business of property dealing due to which allegedly financial dispute has taken place. As such it is submitted that applicant who is not involved in property dealing did not have any motive whatsoever to be complicit in criminal conspiracy to eliminate the deceased. It is further submitted that even as per statements of neighbours namely Anoop Kumar Gupta and Amit Kumar Gupta, although the applicant is shown as being present outside his house. Mere statements with regard to applicant's presence do not make out a cognizable offence against the applicant under Section 120-B IPC.

5. Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have strenuously opposed bail application with the submission that applicant is clearly nominated in the F.I.R. with his presence duly indicated therein. It is submitted that applicant's presence has also been indicated by eye witness account Rashool Ahmad in his statement under Section 161 Cr.P.C. with direct role being attributed to him of throwing chili power in the eyes of the deceased. Attention has been drawn to the portion of case diary whereas as per C.D.R., the applicant's presence has been indicated at the time and place when the incident has taken place. It is submitted that the statements of neighbours under Section 161 Cr.P.C. also indicates presence of applicant at the time and place of incident from where he was continuously conversing with the main accused Deepak Vishwakarma and as such clearly allegations under Section 120-B IPC are made out. It has been further submitted that now charge sheet has been filed against the applicant including Section 34 IPC.

6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that first informant is not eye witness and has subsequently derived information as per which F.I.R. has been lodged in which one Imran and Rasool Ahmad have been indicated as eye witnesses to the incident. In his statement under Section 161 Cr.P.C. the said eye witness has narrated a different tale than the F.I.R. and has implicated the other alleged eye witness Imran in the charges. It appears that in his subsequent statement under Section 161 Cr.P.C., the alleged eye witness Rasool Ahmad has not indicated presence of the applicant at the place and time of incident while co-accused Deepak Vishwakarma and one Pawan have been attributed the role of firing upon the deceased. As such there appears to be certain contradiction in the statement of alleged eye witness with regard to presence and role of applicant in the incident. C.D.R. may also indicate presence of applicant near the place and time of incident, which at this stage does not clearly make out a case of criminal conspiracy against applicant particularly when there does not appear to be a motive attributed to him. The applicant is under incarceration since 7th May, 2022 with charge sheet having been filed.

7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.

9. Accordingly bail application is allowed.

10. Let applicant Rajesh Vishvakarma involved in the aforesaid case crime 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) 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 :- 21.12.2022

Prabhat