Ankit vs State Of U.P.
2022 Latest Caselaw 3698 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8212 of 2022
 

 
Applicant :- Ankit
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Gaurav Kumar Shukla,Vishveshwar Mani Tripathi
 
Counsel for Opposite Party :- G.A.,Akhilesh Kumar Mishra
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the first informant has filed counter affidavit and learned counsel for the applicant has filed rejoinder affidavit, which are taken on record.

Heard Sri Gaurav Kumar Shukla, learned counsel for the applicant, Sri Akhilesh Kumar Mishra, learned counsel for the first informant Sri Pankaj Kumar Tripathi, 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 Ankit under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 194 of 2021, for offence punishable under Sections 147, 304 of the Indian Penal Code, registered at Police Station- Dubauliya, District- Basti during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Basti vide order dated 09.02.2022.

Brief facts of the present case are that the first information report dated 28.11.2021, time 14:37 hours has been lodged by son of the deceased against the applicant and 5 other named co-accused persons under Sections 147, 302 of I.P.C. stating therein that on 21.11.2021 at about 07:00 P.M. applicant and other co-accused persons have committed marpeet after entering into the house of the first informant. The aforesaid incident has been registered as Case Crime No. 192 of 2021, under Sections 147, 323, 504, 506, 452 of I.P.C. It is further alleged that the applicant and other co-accused were pressurized to compromise with the informant earlier in the said case, but his father denied it and due to which on 28.11.2021 at about 07:00 A.M. when his father was going to the field to ease himself, the applicant and other co-accused persons entered in the field with the intention of killing first informant's father with lathi, danda, knife, licensed revolver, bricks in their hands and committed marpeet with lathi and danda and due to which his father sustained grievous injury. The first informant's father reached the house while running and fell and died instantly. Tikori @ Mahadev saw the said incident.

After lodging of the first information report, inquest proceedings was commenced on 28.11.2021 at 15:20 hours, postmortem of the body of the deceased was also conducted on 28.11.2021 at 04:20 P.M., the age of the deceased was 65 years. As per postmortem report one faded contusion 20 cm x 10 cm on left side of chest around nipple; one rib fractured and left lung punctured and chin (mandible bone) fractured with lower incisor and canine teeth, bleeding was present at the time of postmortem. After recording the statements of the first informant Pramod Kumar, first and second statements of eye witness Tikori @ Mahadev and statement of Shailesh Giri and after collecting 28 affidavits of villagers during course of investigation, the Investigating Officer was submitted charge-sheet against the applicant and three other named co-accused persons on 14.02.2022. The applicant was arrested on 01.12.2021.

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 inquest report no external fresh injury was found on the person of the deceased and bleeding was found from the nose of the deceased. It is further submitted that no injury of lathi, danda, bricks was found on the person of the deceased as shown in the postmortem report. It is further argued that general allegations of committing marpit has been levelled against the applicant and other co-accused persons. No specific role and involvement has been attributed to the applicant. It is further argued that it is a prosecution case that the deceased fell down on the door of one Shailendra Singh. The same set of allegation the Investigating Officer has exonerated three named co-accused persons Baliram, Ghanshyam and Shravan Kumar. It is further argued that the independent witnesses of the prosecution have not supported the prosecution case. As per independent witnesses, who submitted their affidavits before Investigating Officer which are part of the investigation, in which they stated that on the date of incident a bull came running from behind and attacked the deceased due to which he fell on the ground and sustained injuries and broke one rib fractured and punctured left lung. It is further argued that the applicant has been implicated on the basis of F.I.R. dated 21.11.2021.

He has next argued that the applicant has no criminal history except one case which has been lodged prior 7 days of the incident 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) The F.I.R. of the present case has been lodged against the applicant and 5 other persons;

(b) As per postmortem report one faded contusion 20 cm x 10 cm on left side of chest around nipple;

(c) As per inquest report no external fresh injury was found on the person of the deceased;

(d) General allegations of committing marpit has been levelled against the applicant and other co-accused persons ;

(e) No specific role and involvement has been attributed to the applicant;

(f) Independent witnesses have not supported the prosecution case;

(g) On the basis of same set of allegation, the Investigating Officer exonerated three named co-accused persons;

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, Ankit 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 :- 23.5.2022

Ishan