Sonu vs State Of U.P.
2022 Latest Caselaw 3252 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9273 of 2022
 
Applicant :- Sonu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dileep Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Sri Dileep Kumar Srivastava, learned counsel for the applicant and Sri K.K. Rajbhar, learned A.G.A. for the State and perused the material on record.

The present bail application has been filed on behalf of applicant Sonu under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 222 of 2020 for offence punishable under Sections 304, 34, 504 of the Indian Penal Code, registered at Police Station- Khadda, District- Kushinagar during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Kushinagar at Padrona vide order dated 19.07.2021.

Brief facts of the present case are that the first information report dated 26.09.2020 has been lodged against the applicant and two other known persons by daughter of the deceased Chandrika, aged about 70 years stating therein that on 26.09.2020 at about 09:00 P.M. the applicant and other co-accused persons unauthorizingly flowing the water in front of the house of the first informant. At the time of the incident, her father was came from market and the applicant and other co-accused persons abused him and committed marpit by lathi and danda, due to which, father of the first informant sustained grievous injury and Police reached the spot, but seeing the condition of the father of the first informant, called an ambulance to save his life and took him to the Turkaha C.H.C. and where the doctor after examination declared her father dead.

Before lodging of the first information report, inquest proceeding of the person of the deceased was conducted on 27.09.2020 at 10:30 A.M. on the information of Sweeper of CHC Turkaha which has been endorsed as GD Rapat No. 40, time 21:45 dated 26.09.2020. As per inquest report, no external injury was found on the person of the deceased. Postmortem of the body of the deceased was conducted on 27.09.2020 at 02:40 P.M. and as per postmortem report, one contusion 25 cm x 10 cm both side of the chest, 5 cm below right clavicle; 5 ribs were found fractured and one contusion size 7 cm x 3 cm on right clavicle region was found. After recording the statement of first informant Reema Devi and other eye witnesses Malti Devi and other Rajesh and other prosecution witnesses under Section 161 Cr.P.C., the Investigating Officer has submitted charge sheet has been submitted against the applicant and one other named persons on 02.06.2021. The application was arrested on 01.06.2021.

Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The first information report has been lodged after about 16 days of the incident by the eye witness without any explanation. It is further submitted that injury which were found on the person of the deceased is not corroborated the prosecution version. It is further submitted that there are general allegations of marpit by lathi and danda has been levelled against the applicant and other co-accused persons. There is no specific role or involvement has been attributed to the applicant. It is further submitted that no incriminating article has been recovered form the possession of the applicant. It is further argued that statements of other eye witnesses Malti Devi and one Rajesh and other prosecution witnesses have been recorded under Section 161 Cr.P.C. on 02.06.2021 after about 08 months and 6 days of the incident.

It has also been submitted that co-accused, Smt. Kamlawati Devi and Prabhakar having similar role, have already been enlarged on bail by the Coordinate Bench of this Court vide orders dated 13.12.2021 and 19.01.2022 in Criminal Misc. Bail Application Nos. 33504 of 2021 and 212 of 2022 respectively, 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. has 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) The first information report has been lodged after 16 days of the incident;

(b) One contusion 25 cm x 10 cm on both side of chest, 5 cm below of right clavicle and one contusion size 7 cm x 3 cm on right clavicle region were found on the person of the deceased;

(c) General allegations of marpit by lathi and danda has been levelled against the applicant and other co-accused persons;

(d) No specific role or involvement has been attributed to the applicant;

(e) Co-accused, Smt. Kamlawati Devi and Prabhakar 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, Sonu 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 :- 18.5.2022

Ishan