Vikas Shakya vs State Of U.P. And Another
2022 Latest Caselaw 22421 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 7508 of 2022
 

 
Appellant :- Vikas Shakya
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Anurag Shukla,Vishakha Dubey
 
Counsel for Respondent :- G.A.,Sanjay Mishra
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Anurag Shukla, learned counsel for the appellant, Shri Om Prakash Dwivedi, learned A.G.A. for the State, Shri Sanjay Mishra, learned counsel for the second respondent and perused the material on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Vikas Shakya to set aside the impugned order dated 31.5.2022, whereby the Special Judge (SC/ST Act), Etawah has rejected the bail application No. 847 of 2022 of the appellant moved by him in Case Crime No. 431 of 2021, under Sections 302, 201, 404, IPC and Section 3(2)(v) of SC/ST Act, Police Station Friends Colony, District Etawah.

Brief facts of the case are that the first information report dated 18.11.2021 was lodged by mother of the deceased against unknown person stating that on 14.11.2021 at noon her son Pintu, aged about 18 years came to the house for taking meal. After that he went to ply E-rickshaw and did not return. On 16.11.2021 one unknown dead body was found in Friends Colony. The mother of the deceased went to mortuary and identified the dead body of her son.

Before lodging the first information report, inquest proceeding of the body of the deceased was conducted on 16.11.2021 as unknown person on the basis of information received on R.T. Set RRIP 112 that the dead body was lying the service road. Postmortem of the body of the deceased was conducted on 18.11.2022 at 12.30 p.m. As per postmortem report, six injuries of incised wound and multiple contusion on uppar part of chest were found and 3rd and 4th ribs of right side as well as 3rd and 4th ribs of left side were found fractured. Time of death was three days prior to the postmortem. Cause of death was shock and hemorrhage due to ante mortem injuries. After recording the statement of the first informant Champa Devi and other witnesses Pushpa Devi and Munni Devi and other prosecution witnesses, charge sheet had been submitted against the appellant and co-accused Rajesh on 8.12.2021. The appellant was arrested on 22.11.2021.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. The FIR was lodged after four days of the incident. It is further submitted that there is no evidence with regard to the last seen evidence in the present case against the appellant. It is further submitted that Pushpa Devi and Munni Devi have stated that the deceased was seen with a boy, who had been arrested.

It is further submitted that no incriminating article has been recovered from the possession of the appellant. Alleged recovery of battery of E-rickshaw and one iron rod were made without complying the mandatory provisions of Section 100, Cr.P.C. It is further submitted that there is no independent/public witness of the alleged recovery. It is further submitted that as per postmortem report, six incised wound were found on the person of the deceased, which had not been caused by iron rod. Except the statement of Pushpa Devi and Munni Devi, no evidence has been collected against the appellant during the course of investigation. It is further submitted that the appellant is languishing in jail since 22.11.2021. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the second respondent have supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. But they could not point out any material to the contrary. They further submit 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) First information report was lodged against unknown person by the mother of the deceased after four days of missing of the deceased;

(b) Injuries found on the person of the deceased were not caused by iron rod;

(c) Pushpa Devi and Munni Devi had not identified the appellant as last seen witness;

(d) As per autopsy report, 6 incised multiple contusion injuries were found on the person of the deceased;

(e) Alleged recovery of Battery of E-rickshaw and iron rod were made without complying the mandatory provision of Section 100, Cr.P.C. and there is no independent and public witness of the alleged recovery;

(f) The appellant is languishing in jail since 22.11.2021.

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 criminal appeal is allowed and impugned order dated 31.5.2022 is set aside.

Let appellant/applicant, Vikas Shakya 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 him 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 his 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 that 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 along-with 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 :- 22.12.2022

T. Sinha