Sachin vs State Of U.P.
2022 Latest Caselaw 4997 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 47
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11723 of 2022
 
Applicant :- Sachin
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sharad Chandra Singh,Maheshwari Prasad Pandey
 
Counsel for Opposite Party :- G.A.,Ajay Kumar Srivastava
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Satish Chandra, learned advocate holding brief of Sri Sharad Chandra Singh, learned counsel for the applicant, Sri Ajay Kumar Srivastava, learned counsel for the first informant and learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Sachin under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 136 of 2021 for offence punishable under Section 304 of the Indian Penal Code, registered at Police Station- Gyanpur, District- Bhadohi, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Bhadohi vide order dated 03.11.2021.

Brief facts of the present case are that the first information report dated 08.09.2021 at 12:31 hours has been lodged against the applicant and two other named persons (brother and father of the applicant) by the the father of the deceased under Section 304 of I.P.C stating therein that on 08.09.2021 at about 07:00 A.M., altercation took place between the son-Kapoorchand aged 45 years of first informant with applicant and two other co-accused persons who were neighbours of the first informant with regard to throwing garbage in a well, in the meantime the applicant and other two co-accused persons assaulted son of first informant by danda from behind, after receiving injuries his son has died in the hospital.

After lodging of the first information report, the inquest proceedings were commenced on 08.09.2021 at 13:30 hours, on the basis of information received from the hospital on 08.09.2021 at 10:12 hours, postmortem of the body of the deceased was also conducted on 08.09.2021 at 3:50 P.M. As per the postmortem report one contusion size 8 cm x 6 cm was found over the left side of chest around left nipple and after dissection of the wound 4th, 5th and 6th ribs were found fractured and lungs were lacerated. After recording the statements of the first informant and other independent witnesses Raju, Nanku, Vinod and Umrai Devi and other prosecution witnesses under Section 161 Cr.P.C, the Investigating Officer has submitted charge-sheet against the applicant and two named co-accused on 06.10.2021. The applicant was arrested on 08.09.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per the allegations of first information report, a general allegation of assaulted by danda on the head of the deceased Kapoorchand has been assigned to the applicant and other co-accused persons. It is further submitted that first informant is not the eye witness of the incident. It is further submitted that deceased has not sustained injury over his head. It is further submitted that as per the statement of the other independent eye witnesses role of assault by a brick to the deceased Kapoorchand has been assigned to co-accused Sunil. It is further argued that except one lacerated wound no other external injury was found on the person of the deceased. It is further submitted that no incriminating article has been recovered from the possession or pointing out of the applicant. The alleged recovery of danda has been recovered without complying the mandatory provisions of the Section 100 of Cr.P.C. and there is no independent/public witness of the alleged recovery. The applicant's case is distinguishable with co-accused Sunil. It is further submitted that co-accused Sheshmani having similar role granted bail by coordinate Bench of this Court vide order dated 09.02.2022 passed in Criminal Misc. Bail Application No. 3175 of 2022

He has next argued that if the applicant is released on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. as well as learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that one danda has been recovered on the pointing out of the applicant and further submits that 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. It is further submitted that danda has been recovered on the pointing out of the applicant. But he could not point out any material to the contrary. He further submits 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) Incident took place at about 7:00 A.M on 08.09.2021 and first information report has been lodged on 08.09.2021 at 12:31 hours;

(b) Inquest of the body of the deceased was conducted on the information received from the hospital on 08.09.2021 at 13:30 A.M;

(c) The deceased has not sustained any injury on his head

(d) Except one lacerated wound size 8 cm x 6 cm found on the chest, no other external injury was found on the person of the deceased;

(e) Co-accused Sheshmani having identical role has been granted 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, 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 bail application is allowed.

Let applicant, Sachin 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/endeavor 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 :- 7.6.2022/PS