Neeshu @ Nishant vs State Of U.P. And Another
2022 Latest Caselaw 18545 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 4729 of 2022
 

 
Appellant :- Neeshu @ Nishant
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Mohd. Aslam
 
Counsel for Respondent :- G.A.,Akhilesh Kumar
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Shri Mohd. Aslam, learned counsel for the appellant, Sri Akhilesh Kumar, learned counsel for the respondent no. 2, Shri Ravindra Kumar Singh, learned A.G.A. for the State and perused the material on record.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Neeshu @ Nishant to set aside the impugned order dated 22.06.2022 whereby the Special Judge (SC/ST Act), Saharanpur has rejected the Bail Application Nos. 1871 of 2022 and 2421 of 2022 of the appellant moved by him in Case Crime No. 220 of 2022, under Sections 302 I.P.C. and Section 3(2)(v), of SC/ST Act, Police Station Sadar Bazar, District Saharanpur.

Brief facts of the case are that the first information report dated 17.04.2022 was lodged by the mother of the deceased against the appellant and other three named co-accused persons stating that on 15.04.2022 at about 10:00 P.M. her son along-with his friends Mukul and Bharat were came to the house near Kori Mazra, where the appellant and other co-accused persons who were already present at the place of incident. It is further alleged that before some days of the incident, some altercation was took place between her son and co-accused Rohit, due to this enmity, the appellant and other co-accused persons caught hold his son and committed marpit badly, by which her son sustained injuries on his body. Mukul and Bharat brought his son home and put him to bed. After some time, his son got up from the bed and started walking, he could not walk, he staggered and fell and after some time her son died.

Before lodging of the first information report, inquest of the body of the deceased was conducted on 16.04.2022 at 13:50 hours on the basis of written information given by the first informant which was endorsed as GD No. 38 on 16.04.2022 at 10:40 hours. As per inquest report, injuries on toe and both legs were found. Postmortem of the deceased was conducted on 16.04.2022. As per postmortem report one traumatic swelling 8 cm x 0.5 cm top of the head, lacerated wound 02 cm. x 0.5 cm over lower part of chin. Scratch marks over dorsal of right foot from big toe to 3rd toe of both legs were found. Cause of death is opined due to shock and hemorrhage.

After recording the statement of the first informant, eye witnesses Mukul and Bharat and other prosecution witnesses, charge sheet has been submitted against the appellant and other three named persons on 22.06.2022. The appellant is arrested on 18.4.2022.

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 G.D. Rapat No. 38 dated 16.04.2022 which has been endorsed on the basis of information, in which the first informant stated that at 11 P.M. her son came home after drinking alcohol and lay down on the bed. After some time her son got up from the bed and went to the courtyard and staggered and fell near the tap in the courtyard, and sustained injury on his chin and after some time in the morning her son died. It is further submitted that there is material contradictions between the earlier written report dated 16.04.2022 and the allegations of the first information report dated 17.04.2022. It is further submitted that as per statement of the eye witnesses Mukul and Bharat, general allegations of committing marpit by kicks and fits has been assigned. No specific role or involvement has been attributed to the present appellant and other co-accused persons.It is further submitted that co-accused Sunil @ Mota, having similar role, has been granted bail by this Court in Criminal Appeal No. 6268 of 2022 vide order dated 16.11.2022, copy of the bail order has been provided during course of the argument, same is taken on record. It is further submitted that the appellant is languishing in jail since 18.4.2022. 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. as well as learned counsel for respondent no. 2 have 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) As per G.D. Rapat No. 38 dated 16.04.2022 which has been endorsed on the basis of information, in which the first informant stated that at 11 P.M. her son came home after drinking alcohol and lay down on the bed. After some time her son got up from the bed and went to the courtyard and staggered and fell near the tap in the courtyard, and sustained injury on his chin and after some time in the morning her son died.

(b) There is material contradictions between the earlier written report dated 16.04.2022 and the allegations of the first information report dated 17.04.2022.

(c) General allegations of committing marpit by kicks and fits has been assigned.

(d) No specific role or involvement has been attributed to the present appellant and other co-accused persons.

(e) Co-accused Sunil @ Mota, having similar role, has been granted bail by 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 criminal appeal is allowed and impugned order dated 22.06.2022 is set aside.

Let appellant/applicant Neeshu @ Nishant 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 :- 23.11.2022

CS/-