Ashish Yadav vs State Of U.P.
2023 Latest Caselaw 12850 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12061 of 2023
 

 
Applicant :- Ashish Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Yogesh Kumar Vaish
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Sadhna Rani (Thakur),J.

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

The bail application under Section 439 Cr.P.C. has been moved by the applicant - Ashish Yadav to enlarge him on bail in FIR No. 1216 of 2018 under Section 302 I.P.C. Police Station Cantt, Case No. 1569 of 2019 in Sessions Trial No. 125 of 2019 pending before the Special Judge E.C. Act, Varanasi.

This is the third bail application of the applicant - Ashish Yadav. The first bail application of the applicant was rejected by the coordinate bench of this court vide order dated 31.07.2019 appended at page-98 of the paper book. The second bail application of this applicant was rejected by this court on 28.11.2022 appended at page 100 of the paper book.

By placing the judgement in case of Lt. Col. Prasad Shrikant Purohit Vs. State of Maharashtra, Criminal Appeal No. 1448 of 2017 (Arising out of Special Leave Petition (Crl.) No. 3716 of 2017) and drawing the attention of the court towards para-22 of the judgment, it is submitted that the court, entertaining the subsequent bail applications, has a duty to consider the reasons and grounds by which the earlier bail applications were rejected and in such cases the court has also a duty to record the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.

On the basis of above judgment, learned counsel for the applicant drew the attention of the court towards the fact that the prosecution could not fix the place of occurrence. As per site plan appended at page 42 of the paper book, the place of occurrence is out side the boundary wall of District Jail, Varanasi near Tarikhana Tiraha, while as per page-50 of the paper book the place of occurrence is the road going towards Guriya Sansthan. Thus, the place of occurrence is said to be not established by the prosecution.

Again, it is argued that there is contradiction in the statement of PW 1 itself, wherein he says that the deceased was taken to the hospital by a private vehicle. Further, he says that the injured was taken by the tempo of the locality and then he says that he was taken by tempo of his family. Thus, there are three versions regarding vehicle by which the injured was taken to the hospital.

It is also argued that though the vehicle is said to be a private vehicle but PW 1, who is said to be an eye witness of the incident, could not disclose the name of the driver of the vehicle.

Again, it is argued that as per statement of PW 1 and also as per record, the injured was taken to two hospitals. In the first hospital, he was not given any treatment and was immediately sent to the higher hospital and in the second hospital he was declared brought dead. Then how in toes of both legs of the deceased the bandage of the hospital was found and on five places white tape with screw, generally used in the hospital, is found. Thus, the version of the prosecution becomes wrong.

The statement of any doctor has not been recorded. The PW 1 could not name the person from whom he got scribed his first information report.

Since last 16 months, only the statement of PW 1 could be recorded.

The accused is shown to be arrested before lodging of the FIR. He is shown to be arrested from the gate of the hospital.

The applicant is having no criminal history to his credit.

Moreover, the incident is said to be seen by the witness PW 1 in the moon light, while on that day it was a 'no moon' night.

No FSL report has been received till date.

It is also argued that the court can reject the bail application only in the case when there is apprehension of tempering the evidence or tempering the witnesses and when there is probability of fleeing from the proceeding of law.

Recovery of pistol cannot be said to be acceptable as this recovery is based on extra judicial confession of the applicant, which is not acceptable in the eyes of law. Hence, prayer is made to allow the third bail application of the applicant.

Learned A.G.A. however opposed the prayer and argued that all the merits of the bail have been argued and decided at the time of disposal of first and second bail applications. Now, the court cannot reconsider those grounds.

Learned counsel for the applicant has also placed before the court the judgement dated 03.09.1996 passed in Rehmat Vs. The State Haryana, (1996) 10 Supreme Court Cases 346 and judgment dated 12.09.1996 passed in Devinder Vs. State of Haryana, AIR 1997 Supreme Court 454 but the facts of these two judgements are different from the facts of the present case. Hence, learned counsel for the applicant cannot take benefit of these two judgments

Learned counsel for the applicant has also placed before the court the judgment in Sanjay Chandra Vs. Central Bureau of Investigation (2012) 1 Supreme Court Cases 40. The attention of the court is drawn towards paragraphs 36, 37 and 38 of the judgment and it is prayed by the learned counsel for the applicant that when there is delay in the trial, bail should be granted to the accused. In paras - 37 and 38 of the judgement the principles granting bail have been discussed.

If on the basis of judgment Lt. Col. Prasad Shrikant Purohit (supra) the court considers the reasons and grounds on which the earlier bail applications were rejected and also considers the fresh grounds it is found that the first bail application of the applicant was rejected distinguishing the case of Ashish Yadav with that of co-accused Vinod Yadav, who had been granted bail earlier and the case of Ashish Yadav was found different from that of Vinod Yadav because of the recovery of pistol used in the murder, from the present applicant.

In the second bail application the ground of delay of trial was considered and the trial court was directed to expedite the hearing of the trial and conclude the same expeditiously, preferably within a period of one year from the date of production of a certified copy of the order dated 28.11.2022 (the order of rejection of the second bail application)

If we consider the grounds raised by the learned counsel for the applicant one by one; the first argument is that the place of occurrence is not fixed by the prosecution. On the basis of two maps, appended at pages - 42 and 50 of the paper book, it is argued that the spot of occurrence is different in both these maps. It is true that both the maps are of different places but it is to be noted that the map appended at page-42 of the paper book is the map of the place from where the recovery of the pistol is shown to be made from the applicant and the map at page-50 of the paper book is the map of the place where the incident of firing is said to have taken place. As the incidents are different so certainly the site plans would also be different and thus, the argument of learned counsel for the applicant that place of occurrence has not been established by the prosecution, fails.

So far as the argument that the injured was taken to the hospital by the private vehicle, tempo of the locality or tempo of family members is concerned, certainly the tempo whether it is of locality or of a family member, in both the cases the vehicle may be a private vehicle. So far as the tempo belonging to a person of the locality or tempo belonging to the family is concerned, in the villages all the near or remote relatives live nearby even the neighbours are treated to be the family members. If PW 1 says that the injured was taken to the hospital by tempo of locality that may be a tempo belonging to a neighbour or a tempo of family member, which does not make any difference and thus this fact cannot effect the prosecution case adversely.

So far as the version of PW 1 at page-108 of the paper book is concerned, that PW 1 could not even name the driver of the tempo, he has clearly said in his statement that there was a mess he did not pay heed that who was driving the tempo. Thus, the tempo was of the same locality and the driver was also of the same locality or not he could not tell. In the opinion of the court, it is very natural that when a family member is shot at and he is fighting with life and death, in haste, no one compulsorily pay heed as to who was driving the vehicle. Every attention of the person remains on the injured, so the learned counsel for the applicant cannot take benefit of the fact that PW 1 could not disclose the name of the driver who took the injured to the hospital.

So far as the fact that the deceased was not treated in any hospital and even then the bandage and tape of the hospital were found on his person is concerned, these bandages were new bandages or were present on the person of the deceased prior to the incident, this fact would be proved after recording of evidence only.

So far as the argument that PW 1 could not disclose the name of scribe of the FIR is concerned, he has stated in his statement that he got scribed the FIR by an unknown person. This fact also does not make any difference because in haste whoever is available on the spot may scribe the FIR and if the person who dictated the FIR to the unknown person, proves the FIR in the court, it does not make any difference that the scribe of the FIR is known or an unknown person.

So far as the fact that the applicant was arrested before the FIR was lodged, is concerned, the FIR was lodged on 02.11.2018 at 4.56 a.m. and the incident is dated 01.11.2018 at 23.30 p.m. As per arrest memo the accused is shown to be arrested on 03.11.2018 at 18.30 hours, so the argument of the learned counsel for the applicant that the FIR was lodged after the arrest of the applicant becomes wrong.

So far as the fact that the time of incident was a moon lit night or no moon night is concerned, this fact can be decided only after the evidence of the parties. The applicant is having no criminal history, cannot be a sole ground of releasing the applicant on bail. Recovery of pistol is still to be proved by the evidence. FSL report regarding bullet has been received or not, is also a matter of evidence.

So far as the fact that since last 16 months the statement of only one witness, PW 1 has been recorded and on the ground of delay the bail is being seeked. The incident is dated 01.11.2018 and the statement of PW 1 started in the trial court on 27.10.2021. After recording partial cross examination of PW 1 on 27.10.2021, PW 1 was cross-examined on behalf of the accused person apart from 27.10.2021 on 19.05.2022, 02.06.2022, 05.08.2022, 06.09.2022, 16.09.2022, 17.10.2022, 05.11.2022, 05.01.2023 and 08.02.2023. Thus, the cross examination of PW 1 took ten dates and about one year & four months. It was only on 28.11.2022 that the order of expeditious disposal was made by this court. Thus, this delay in recording evidence of PW 1 only in last 16 months is attributed to the applicant/accused only and not to the prosecution.

Admittedly, the statements of rest witnesses of fact are still to be recorded. The evidence of prosecution is not completed yet so there is still apprehension on the part of the applicant of tempering the evidence of witnesses.

Hence, in the opinion of the court the delay in trial in the present case and other ground of bail, which were available at the time of disposal of first and second bail applications also, do not inspire confidence of the court. No sufficient fresh ground is found to permit the third bail application of the applicant.

Thus, taking overall view of the facts and circumstances of the case, I do not find it a fit case for bail.

The bail application is hereby rejected.

It is made clear that all the above findings are restricted to the disposal of bail application only and the parties cannot take benefit of the above findings at any other stage of the trial

Order Date :- 26.4.2023

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