Rabiya Begam vs State Of U.P. And Anr.
2022 Latest Caselaw 8199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 14
 

 
Case :- CRIMINAL APPEAL No. - 1263 of 2020
 

 
Appellant :- Rabiya Begam
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Manoj Kumar Singh
 
Counsel for Respondent :- G.A.,Ashish Raman Mishra
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Manoj Kumar Singh, learned counsel for the appellant, Sri Ashish Raman Mishra, learned counsel for respondent no. 2 and Sri Ajay Kumar Agnihotri, learned A.G.A. for the State and perused the material on record.

The present criminal appeal has been preferred by the appellants-accused under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act to set-aside order dated 10.12.2020, passed by Special Judge/ Additional Sessions Judge, S.C./S.T. Act Bahraich in Criminal Misc. Bail Application No. 1809/12A of 2021 (Rabiya Begam Vs. State), arising out of Case Crime No. 170 of 2020, under Sections 364, 302, 201, 34 of I.P.C. and Sections 3(2)V of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, registered Police Station- Matera, District- Bahraich by which rejecting the bail application of the appellant.

Brief facts of the case are that the first information report dated 29.10.2020 has been lodged against unknown person under Section 363 of I.P.C. stating therein that on 29.10.2020 at about 07:00 A.M., his son, Ved Prakash Chaudhary, aged about 12 years, who was studying in Class-V went to coaching, but he has not returned home, thereafter, he search a lot but could not find out and thereafter, first informant lodged a missing report.

After lodging of the first information report, the dead body of the son of the first informant Ved Prakash Chaudhary was recovered. Inquest proceedings of the body of the deceased was conducted on 31.10.2020 at 08.05 hours; the dead body of the son of the first informant was found in a yellow bag on the instance of one Onkar Nath (father of the first informant) and at the time of inquest proceedings one injury was found on the head of the deceased. Postmortem of the deceased was conducted on 31.10.2020 at 12.35 P.M. As per postmortem report, one lacerated wound on the right side of temporal region; incised wound on left side of temporal region and crush injuries were present on the forehead; contused swelling on the right side of face and abrasion mark was present in front of neck was found on the person of the deceased. Cause of death is asphyxia due to ante-mortem injury and the time of death is one day. The appellant was arrested on 01.11.2020. After recording the statement of the prosecution witnesses, charge-sheet has been submitted against the present applicant and 5 other persons including co-accused Kalim.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to ulterior motive. The first information report has been lodged against the unknown person. It is further submitted that the name of the present appellant has surfaced on the confessional statement of co-accused Kalim. It is further submitted that no incriminating article has been recovered from the possession or pointing out of the appellant. It is further submitted that as per prosecution case motive has been assigned to co-accused Kalim. It is further submitted that recovery of books of the deceased, one danda, one salwar pooled with blood stained has been recovered on the pointing out of co-accused Israr and recovery of motorcycle of the deceased has been recovered from the pointing of co-accused Hasan.

It has also been submitted that co-accused, Tahira and Aaysha having similar role, have already been enlarged on bail by the Coordinate Bench of this Court vide order dated 02.02.2022 and 04.03.2022 in Criminal Appeal Nos. 22 of 2021 and 50 of 2021. It is further submitted appellant has no criminal antecedent to her credit.

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, she shall not misuse the liberty of bail.

Per contra, learned A.G.A. as well as opposite party no. 2 have supported the order passed by the Additional Sessions Judge and vehemently opposed the prayer for grant of bail to the appellant and submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. 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 appellant is released on bail, she 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) The name of the present appellant has surfaced on the basis of confessional statement of co-accused Kalim;

(b) No incriminating article has been recovered from the possession or pointing out of the appellant;

(c) Co-accused, Tahira and Aaysha having similar role, have already been enlarged on bail by the Coordinate Bench of this Court;

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, their role and involvement in the offence, their 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.

In view of the above, the impugned order dated 10.12.2020 is liable to be set-aside.

Let appellant/applicant, Rabiya Begam be released on bail in the aforesaid case crime number on her furnishing a personal bonds and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

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

(iii) The appellant/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 appellant/applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

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

(vi) The appellant/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 appellants are 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.

Order Date :- 27.7.2022

Ishan