Leeladhar vs The State Of U.P. Through ...
2022 Latest Caselaw 4184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9138 of 2022
 

 
Applicant :- Leeladhar
 
Opposite Party :- The State Of U.P. Through Principal Secretary (Home)
 
Counsel for Applicant :- Ashutosh Yadav,Abhilasha Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Mrs. Abhilasha Singh, learned counsel for the applicant and Shri 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 Leeladhar under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 280 of 2021 for offence punishable under Sections 302, 34 of the Indian Penal Code, registered at Police Station Gunnaur, District Sambhal, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Sambhal at Chandausi vide order dated 5.1.2022.

Brief facts of the case are that the First Information Report dated 22.5.2021 has been lodged by brother of the deceased against the applicant and three other named persons under Section 302, 34, IPC stating therein that on 22.5.2021 the first informant and his brother Dalveer Singh (now deceased) were coming back to the village from their field. Due to mud on the way, they turned into the med of Narayan Singh's field and for this reason an altercation took place between complainant side and Narayan Singh in the field. On the same day at about 8.00 p.m., the first informant and his brother Dalveer Singh, nephew Amarpal and Sukhram were going to attend a feast at the house of Ram Singh. When they reached in front of the house of Awadhesh, the applicant and three other named persons fired upon the brother of the first informant from their country made pistols. Brother of the first informant received gun shot injury in his forehead just above the left eye due to which he died on the spot. The incident was seen by the first informant and other villagers. The applicant and other co-accused persons fled away from the spot. The first informant took the body of his brother to the District Hospital Gunnaur by Government Ambulance.

After lodging the first information report, inquest of the body of the deceased was conducted on 22.5.2021 at 23.10 hours. Postmortem of the body of the deceased was conducted on 23.5.2021 at 4.00 p.m. As per postmortem report, one fire arm entry wound 4 cm x 2 cm on left side of forehead 2 cm above from left eye brow was found. Margin of wound were inverted & lacerated. No blackening & tattooing were present around the wound. No exit wound was found. Apart from this injury, one contusion 12 cm x 7 cm was also present on the back side of abdomen. Time of death was about 14-16 hours. After recording the statements of the first informant Mukesh, witnesses Amarpal and Sukhram and other prosecution witnesses, charge sheet has been submitted against the applicant and one Narayan Singh. The Investigating Officer has exonerated two named persons namely Awadhesh, real brother of co-accused Narayan Singh and Roshan Singh, brother of the present applicant. The applicant was arrested on 9.11.2021.

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 allegation of first information report as well as statement of the first informant and other prosecution witnesses, role of firing has been assigned to all the four named co-accused persons including the applicant. No specific role or involvement has been attributed to the applicant by the first informant and other prosecution witnesses. It is further submitted that the deceased has received only one injury, but the role of causing injury by fire arm was assigned to four accused persons, thus, who was the author of causing single gunshot injury to the deceased is not known. It is further submitted that the applicant has no concern with the co-accused Narayan Singh. Learned counsel for the applicant specifically submits that the applicant has no blood relation with the co-accused Narayan Singh. It is further submitted that motive has been assigned to co-accused Narayan Singh. There is no motive against the present applicant. It is further submitted that no incriminating article has been recovered from the possession or pointing out of the applicant. The applicant has been arrested after 5 months 17 days of the incident. It is further submitted that co-accused Narayana @ Shivkumar, having similar role, has been granted bail by a Coordinate Bench of this Court vide order dated 7.5.2022 in Criminal Misc. Bail Application No. 10554 of 2022.

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 FIR 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) First information report has been lodged against the four persons within 1-1/2 hours of the incident;

(b) One fire arm entry wound and one contusion were found on the person of the deceased;

(c) General role of fire shot has been assigned to the applicant;

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

(e) On the basis of same set of allegation, two other co-accused Awadhesh and Roshan Singh have been exonerated by the Investigating Officer;

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

(g)The applicant has been arrested after 5 months 17 days of the incident;

(h) Co-accused Narayana @ Shivkumar, having similar role, has been granted bail by a Coordinate Bench of this Court vide order dated 7.5.2022 in Criminal Misc. Bail Application No. 10554 of 2022. .

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, Leeladhar 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/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.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith 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 :- 26.5.2022

T. Sinha