Ajay Chand vs State Of U.P.
2022 Latest Caselaw 3030 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1487 of 2022
 
Applicant :- Ajay Chand
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Garun Pal Singh
 
Counsel for Opposite Party :- G.A.,Vijay Kumar
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Garun Pal Singh, learned counsel for the applicant, Sri Vijay Kumar, learned counsel for the first informant and Sri Pankaj Kumar Tripathi, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Ajay Chand under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 576 of 2021, for offence punishable under Sections 147, 148, 149, 302, 307, 323, 504, 506 and 120-B of the Indian Penal Code, registered at Police Station- Vrindavan, District- Mathura, during pendency of the trial, after rejecting the bail application of the applicant by Additional Sessions Judge, Court No. 04, Mathura vide order dated 08.11.2021.

Brief facts of the present case are that the first information report dated 04.07.2021 has been lodged against the applicant and six other named persons stating therein that on 04.07.2021 co-accused Shyam Sunder wanted to construct a cemented road in the back of the house of the first informant and started constructions work, when the first informant restrained the accused persons, they abused him and at that time first informant and her daughter-in-law Geeta reached there. Then accused persons who were having lathi, danda and firearm weapons in their hands and committed marpit. Co-accused Shyam Sundar and the applicant shot fired at the son of the first informant with the intention of killing him, which hit his son in the waist, due to which his son died on the spot. The incident has been seen by other persons which has been taken place at about 08:45 A.M. Co-accused Radha Krishna and Virma had instigated to do this incident and one Ram Kishore was also sustained injuries in the incident.

After lodging of the first information report, inquest of the body of the deceased Rajvir was conducted on 04.07.2021 at about 13:45 hours; postmortem of the deceased was conducted on 04.07.2021 at about 04:50 P.M. and as per the postmortem report one firearm entry wound was found on right lower abdomen, blackening and tattooing was present around the wound size 2 x 2 cm and one bullet recovered from the left lung of the deceased. Medical examination of the injured Geeta, Mamta and Lata were conducted on 04.07.2021 at about 10:45 A.M., 12:45 A.M. and 12:30 P.M. respectively. After recording the statement of first informant as well as injured witnesses and other prosecution witnesses under Section 161 Cr.P.C., the Investigating Officer has submitted charge-sheet against the applicant and other six named persons on 30.09.2021. The applicant was arrested on 09.07.2021.

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 statement of the first informant, Mamta, Geeta, Ram Kishore and Jagdev there is specific role of fire shot has been assigned to co-accused Shyam Sunder. It is next submitted that there is no specific role has been assigned to the applicant. It is next argued that as per postmortem report only one firearm entry wound was found on the person of the deceased which has been caused by co-accused Shyam Sunder as per statement of the injured witnesses. It is next contended that the statement of the injured Lata was recorded by the Investigating Officer and she tender an affidavit to the Investigating Officer. It is further submitted that the other injured/ prosecution witnesses namely Mamta, Lata and Geeta have sustained a single injury of lacerated wound each. No incriminating article has been recovered from the possession or pointing out of the applicant and no role has been assigned to the applicant.

It has also been submitted that co-accused, Smt. Virma Devi, Suresh and Ramveer, having similar role, have already been enlarged on bail by the Coordinate Bench of this Court vide orders dated 30.11.2021 and 10.12.2021 in Criminal Misc. Bail Application Nos. 50383 of 2021 and 50420 of 2021 respectively and the applicant is also entitled to be enlarged on bail on the ground of parity. He has next argued that the applicant has no previous criminal history and 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 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 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) As per injured witnesses, the main role of fire shot injury has been assigned to co-accused Shyam Sunder;

(b) As per the prosecution witnesses, Om Prakash (first informant), Lata, Geeta, Ram Kishore have not assigned any specific role to the applicant;

(c) As per postmortem report only one firearm entry wound was found on the person of the deceased;

(d) Co-accused, Smt. Virma Devi, Suresh and Ramveer, 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, 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, Ajay Chand 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 :- 16.5.2022/Ishan