Santosh Kumar Yadav vs State Of U.P.
2022 Latest Caselaw 15423 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 18.10.2022  
 
  Delivered On:- 01.11.2022  
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39791 of 2022 
 
Applicant :- Santosh Kumar Yadav 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Gyan Chandra Yadav 
 
Counsel for Opposite Party :- G.A., Amit Kumar Tripathi 
 
Hon'ble Siddharth, J.

1. Heard Sri Gyan Chandra Yadav, learned counsel for the applicant; Sri Deepak Dubey, learned counsel for the informant and learned A.G.A for the State.

2. The applicant has been implicated in this case on the allegations of causing murder with common intention by hatching a conspiracy for the same. FIR was lodged by one, Alok Kumar Yadav, alleging that he along with his brother, Ashish Kumar Yadav, son of Babu Chand Yadav and Ashish Kumar Yadav @ Bhothu son of Gulab Chand Yadav, were sitting on the tea shop of Buchnu Tiwari @ Sushil Tiwari. The applicant and ten others were present there with intention to assault. the applicant made exhortation and directed all the accused persons to finish them. The applicant is alleged to have been armed with pistol and co-accused, Nanhe Tiwari @ Rajguru, is alleged to have shot the brother of the applicant, Ashish Kumar Yadav from short range.

3. Counsel for the applicant submits that the prosecution story is doubtful. The Investigating Officer has exonerated eight accused out of 11 accused named in the FIR and now the applicant, Nanhe Tiwari @ Rajguru and Azad Tiwari @ Manju, stands implicated in this case. The allegations against the other accused persons were found to be incorrect. The applicant alleges false implication in this case. It has been submitted that the main role of causing fire arm injury has been assigned to co-accused, Nanhe Tiwari @ Rajguru, in the FIR.

4. Counsel for the applicant further submits that the applicant has been implicated in this case because of criminal history of 10 cases explained in paragraph 28 of the affidavit in support of the bail application. He is in jail since 27.06.2022.

5. Sri Deepak Dubey, learned counsel for the informant has vehemently opposed the bail application and has relied upon the judgment of the Apex Court in the case of Deepak Yadav Vs. State of U.P and Another, 2022 (120) ACC 608. In this case, the Apex Court disapproved the grant of bail by the High Court to an accused on the ground that he was main accused and was having intention to cause the death of the deceased on account of existence of land dispute. He actively participated in the incident and therefore, bail granted to such an accused was cancelled by the Apex Court.

6. The second judgment relied upon by the counsel for the informant is of Bhoopendra Singh Vs. State of Rajasthan and Another passed in Criminal Appeal No. 1279 of 2021 wherein there was evidence in the form of CDR details. The bail granted to the accused was cancelled on the ground that the relevant circumstances bearing on the seriousness and gravity of the crime and the role attributed to the accused was not considered by the High Court.

7. The third judgment relied upon by the counsel for the informant is of Kumer Singh vs. State of Rajasthan and Another, 2021 (117) ACC 609 which is regarding Section 149 IPC and has no relevance to this case because the investigating officer has not found the implication of the applicant under Section 149 Cr.P.C and now only three accused persons have been implicated in this case out of 11 initially implicated.

8. Finally, the judgment of the Apex Court in the case of Mamta and Another vs. The State (NCT of Delhi) and Another passed in Criminal Appeal No. 878 of 2022 has been relied upon wherein the Apex Court has cancelled the bail of the accused on the ground that the trial has begun and crucial witness are yet to be examined and release of the accused on bail would be grave risk for the fair trial. The apprehension of witnesses being tampered was also found to be there.

9. In the present case, the factual situation is otherwise, therefore, the judgments of the Apex Court cited by the counsel for the informant have no relevance for the present case. Coming back to the present case, this court finds that in the present case the applicant has although been assigned the role of catching hold of the deceased only but in the present case the investigation was not being done fairly and therefore the Senior Superintendent of Police has transferred the same to another police station. In the statements of the witnesses, it has come that the deceased molested the sister of the co-accused, Nanhe Tiwari @ Rajguru and therefore he is alleged to have caused the murder of the deceased. Recovery of weapon has also been made from Nanhe Tiwari @ Rajguru. It also appears that the applicant is pradhan of the village and has political rivalry in the village. In the rejection order, his criminal history has been considered and the court below has found that in three cases out of 10 cases wherein the applicant was implicated, his implication was found to be false and no charge sheet was submitted against him. In three cases he is on bail. In one case under Gunda Act he has filed his objections and two cases relate to the offences under Mining Act. One case is regarding election petition.

10. There is no evidence collected by the investigating officer as to how the applicant had common intention of killing the deceased who had molested the sister of co-accused for constituting offence under Section 34 IPC. Definite evidence should have been gathered to prove the common intention of all the accused and it ought to have been proved by collecting evidence that they had gathered accordingly. It is further notable that the applicant has been implicated for committing the offence under Section 34 IPC on the basis of one sided evidence collected by the investigating officer. He has not recorded any statement of the accused side in furtherance of the principles of fair investigation.

11. This court further finds that initially the applicant was implicated along with ten accused persons under Section 149 IPC and other Sections of IPC but later the 8 accused named in the FIR were exonerated by the investigating officer and applicant has been implicated for committing the offence under Section 120-B IPC read with Section 302/34 IPC. What was his connection with the co-accused, Nanhe Tiwari @ Rajguru has not been clearly investigated by the investigating officer. In case, Nanhe Tiwari @ Rajguru, was political supporter of the applicant, element of hatching of conspiracy ought to have proved by the investigating officer. His false implication cannot be rule out. Investigating officer has not collected any ocular testimony regarding the hatching of conspiracy by the applicant along with co-accused, Nanhe Tiwari @ Rajguru. Co-accused, Nanhe Tiwari @ Rajguru, has admitted before the police that he has good relationship with the applicant. The deceased was the nephew of the Prem Chand Yadav, who was rival candidate of the applicant in election for the post of pradhan. Rakesh Kumar Yadav, has stated this fact in his statement before the police. He has also stated that the deceased misbehaved with the sister of the co-accused, Nanhe Tiwari @ Rajguru.

12. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

13. -Let the applicant, Santosh Kumar Yadav, involved in Case Crime No. 107 of 2022, under Sections- 302, 34, 120-B IPC, Police Station- Sarai Inayat, District- Prayagraj, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant will report his presence before the Police Station- Sarai Inayat, District- Prayagraj in first week of every second month till the trial against the applicant is concluded.

(iii) 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 Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(iv) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(v) In case the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

(vi) 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 Cr.P.C. If in the opinion of the Trial Court 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 against him in accordance with law.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Order Date :- 01.11.2022

Rohit