Abhishek vs State Of U.P. And Another
2022 Latest Caselaw 16656 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 3102 of 2022
 

 
Appellant :- Abhishek
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Satya Narayan Gupta
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Satya Narayan Gupta, learned counsel for the appellant and Shri Virendra Kumar Maurya, learned A.G.A. for the State and perused the material on record.

Despite service of notice upon respondent no. 2, no one has appeared on behalf of the respondent no. 2.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Abhishek to set aside the impugned order dated 02.02.2022 whereby the Special Judge (SC/ST Act)/ Additional Sessions Judge, Lalitpur has rejected the bail application No. 907 of 2021 of the appellant moved by him in Case Crime No. 88 of 2021, under Sections 452, 302, 323, 324, 504, 34 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station Girar District Lalipur.

Brief facts of the case are that the first information report dated 17.11.2021 was lodged by brother of the deceased against the appellant and other named co-accused person Bhan Singh stating that on 16.11.2021 at about 07:00 P.M. appellant and other co-accused were drinking liquor near the hill and abusing the villagers, when the first informant's brother refused to abuse, then they beat up his brother but after that his brother talked about reporting, then the co-accused Bhan Singh entered his brother's room with an axe and committed marpit with him and hit him on the head with an axe, due to which his brother died on the spot. When the first informant and the Pappu, Phula Sahariya tried to catch hold the Bhan Singh, he abused Phula Sahariya with caste derogatory words and assaulted the feet of Phula Sangria with axe which cause injuries to him and the appellant and other co- accused persons fled away from the spot.

After lodging the first information report, inquest of the body of the deceased was conducted on 17.11.2021 at 08:30 A.M.; postmortem of the deceased was also conducted on 17.11.2021. As per postmortem report three incised wounds were found on the persons of the deceased 4 cm x 2 cm, 3 cm x 2 cm and 3 cm x 2 cm into bone deep over the head. Medical examination of the injured Phool Chandra was conducted on 17.11.2021 at CHC Mahrauni, Lalitpur, wherein one contused swelling 10 cm x 6 cm over the outer side of knee was found. After recording the statements of the other prosecution witnesses, charge sheet has been submitted against the appellant and other co-accused person Bhan Singh on 05.02.2022. The appellant was arrested on 17.11.2022.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case due to ulterior motive. It is further submitted that as per allegations of the first information report as well as statement of the injured witness Phula Sahariya main role of assault by axe has been assigned to Bhan Singh. It is further submitted that no role of committing the crime in the present case has been assigned to the appellant by the first informant, eye witness Pappu and injured witness Phula Sahariya. It is further submitted that the first informant as PW-1 has not assigned any role in the incident and declared hostile against the present appellant. It is further submitted that no incriminating article has been recovered from the possession of the appellant. The alleged recovery of axe has been made from the possession of the co-accused Bhan Singh. It is further submitted that the case of co-accused Bhan Singh is distinguishable with the case of the present appellant;

It is further submitted that the appellant is languishing in jail since 17.11.2021. The appellant has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Special Judge and vehemently opposed the prayer for grant of bail to the applicant. 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) Main role of assault of axe to the deceased has been assigned to the co-accused Bhan Singh;

(b) As per the statement of the F.I.R., eye witness Pappu and injured witness Phula Sahariya, no role has been attributed to the present appellant;

(c) The alleged recovery of axe has been made from the possession of the co-accused Bhan Singh;

(d) The case of co-accused Bhan Singh is distinguishable with the case of the present appellant;

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 criminal appeal is allowed and impugned order dated 17.11.2021 is set aside.

Let appellant/applicant, Abhishek 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 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 :- 11.11.2022

Ishan