Deshraj @ Chhotu Kushwaha vs State Of U.P.
2023 Latest Caselaw 20115 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:155175
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31573 of 2023
 

 
Applicant :- Deshraj @ Chhotu Kushwaha
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashwini Kumar Ojha
 
Counsel for Opposite Party :- G.A.,Piyush Kumar Shukla
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Ashwini Kumar Ojha, the learned counsel for applicant, the learned A.G.A. for State and Mr. Piyush Kumar Shukla, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Deshraj @ Chhotu Kushwaha, seeking his enlargement on bail in Case Crime No. 3 of 2023, under Sections 302, 201, 34 IPC, Police Station-Baruasagar, District-Jhansi during the pendency of trial i.e. Sessions Trial No. 389 of 2023 (State Vs. Parvati Kushwaha) now pending in the Court of Sessions Judge, Jhansi.

4. At the very outset, the learned counsel for applicant contends that co-accused Smt. Parvati Kushwaha has already been enlarged on bail by this Court vide order dated 14.06.2023 passed in Criminal Misc. Bail Application No. 22188 of 2023 (Smt. Parvati Kushwaha Vs. State of U.P.). For ready reference, the order dated 14.06.2023 is extracted herein under:-

"1. Heard Mr. B.K. Sharma, the learned counsel for applicant, the learned A.G.A. for State and Mr Anil Kumar Razzak, Advocate, holding brief of Mr. Divyanshu Chaudhary, the learned counsel for first informant.

2. Perused the record.

3. This application for bail has been filed by applicant Smt Parvati Kushwaha, seeking her enlargement on bail in Case Crime No. 03 of 2023 under Sections 302, 201 and 34 of I.P.C. P.S.- Baruwasagar, District Jhansi, during the pendency of trial i.e. Sessions Trial No. 389 of 2023 (State Vs. Smt Parvati Kushwaha) under Sections 302, 201 and 34 of I.P.C. P.S.- Baruwasagar, District Jhansi.

4. Record shows that in respect of an incident which is alleged to have occurred on 04.01.2023, a delayed F.I.R. dated 05.01.2023 was lodged by first informant Mahendra Kushwaha and was registred as Case Crime No. 13 of 2023 under Sections 302, 201 and 34 of I.P.C. P.S.- Baruwasagar, District Jhansi. In the aforesaid F.I.R., applicant Parvati Kushwaha and Deshraj @ Chotu Kushwaha, husband of applicant, have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused are guilty of causing death of Pravesh, brother of first informant.

6. After aforementioned F.I.R. was lodged, the postmortem of the body of the deceased was conducted. The doctor who conducted the autopsy of the body of the deceased, found following ante mortem injuries on the body of the deceased-

"1. One complete ligature mark with brown, Perment like surface present all around the neck with length 3.3 Cm and widening 0.75 Cm laceration of ligature mark is 5 Cm below chin and 8 Cm below right ear and 8 Cm below left ear.

2. Multiple small abraded contusion on left side of neck below ligature mark (0.5 Cm x 0.5 Cm x 0.5 Cm x 0.5 x 0.5 Cm, 0.5 x 0.5 Cm) and above the ligature mark (0.25 x 0.25 Cm)

3. Multiple small abraded contusion on right side of neck below ligature mark (1 Cm x 0.5 Cm) and above the ligature mark.

4. Abrasion 1.5 Cm x 1 Cm below lateral part of right side.

5. Abrasion 1 Cm x 1 Cm above the right side."

7. In the opinion of the autopsy surgeon the cause of death of deceased was Asphyxia as a result of ante mortem strangulation. The Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the F.I.R. On the basis of above and other material collected by him during the course of investigation, Investigating Officer came to the conclusion that offence alleged against the named accused is established.

8. He accordingly, submitted the charge-sheet dated 15.12.2023. Learned counsel for applicant contends that though, applicant is a named accused, she is innocent. He then submits that since applicant is a lady, therefore, in view of the provisions contained in proviso to Section 437 Cr.P.C., she is liable to be enlarged on bail. Applicant is in jail since 06.01.2023. As such, she has undergone more than 5 months of incarceration. The charge sheet having been submitted therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. It is further submitted that present case is a case of circumstantial evidence, however, up to this stage, the motive behind the occurrence has not been squarely established against the applicant. Referring to the judgment of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622, learned counsel for applicant contends that the parameters laid down by the Court for deciding the guilt of an accused in a case based on circumstantial evidence in above mentioned judgment are not satisfied against the applicant. Up to this stage, there is no eye-witness of the occurrence as it is a case based upon circumstantial evidence. There is no evidence of last seen against applicant nor any recovery has been made from applicant either.

9. Even otherwise, applicant is a lady of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant is in jail since 06.01.2023. As such, she has undergone 5 months of incarceration. In case, the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall cooperate with the tria.

10. Per contra, the learned A.G.A. for State and the learned counsel for first informant have opposed the prayer for bail. However, they could not dislodge the factual/legal submissions urged by learned counsel for applicant with reference to the record at this stage.

11. Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, acquisitions made, complicity of applicant, the nature and gravity of offence coupled with the fact that since applicant is a lady, therefore, she is entitled to the benefit of proviso to Section 437 Cr.P.C., the period of incarceration undergone by the applicant, the charge sheet having been submitted, therefore the evidence sought to be relied upon by the prosecution stands crystalized, the present case is a case of circumstantial evidence however, up to this stage, the parameters laid down for inferring the guilt of accused in a case based upon circumstantial evidence as explained by the Apex Court in Sharad Birdhichand Sarda (supra) being not prima facie satisfied against the applicant, the motive behind the occurrence not been established against the applicant, having the clean antecedents of the applicant, there having no evidence of last seen against applicant, the recovery of the motorcycle of the accused from applicant being doubtful, but without making any comments on the merits of the case, the applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant- Smt Parvati Kushwaha be released on bail in the aforesaid case crime number on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

14. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."

5. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to that of co-accused Smt. Parvati Kushwaha. There is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from co-accused Smt. Parvati Kushwaha so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons recorded in the bail order of co-accused Smt. Parvati Kushwaha, applicant is also liable to be enlarged on bail on the ground of parity. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 06.01.2023. As such, he has undergone almost 7 years of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, the evidence of last seen as well as the CDR report has emerged against applicant. However, merely on the basis of above, it cannot be definitely concluded that applicant is guilty of committing crime in question. With regard to the credibility of the theory of last seen, reliance is placed upon the judgment of Supreme Court in Jabir Vs. State of Uttarakhand, 2023 SCC OnLine SC 32 and on basis thereof, it is urged that no conviction can be maintained only on the basis of last seen. It is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

6. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. It is also submitted by the learned A.G.A. as well as the learned counsel for first informant that the deceased went out from the tent house only after receiving a phone call from the co-accused Smt. Parvati Kushwaha. Applicant is the husband of co-accused Smt. Parvati Kushwaha. Criminality committed by both the accused is joint and common. As such, the role of the applicant cannot be separated or segregated. Co-accused Smt. Parvati Kushwaha has been granted the benefit of bail only on the ground of the provisions contained in proviso to Section 437 Cr.P.C. It is thus urged that no indulgence be granted by this Court in favour of applicant.

7. When confronted with above, the learned counsel for applicant contends that in view of the law laid down by Apex Court, no conviction of the applicant can be maintained simply on the basis of last seen. The complicity of applicant in the crime in question has to be judged in the light of the parameters laid down by Supreme Court for deciding a case based upon circumstantial evidence laid down in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622 (Page 152). However, none of the parameters laid down in aforementioned judgment are satisfied against applicant up to this stage. The case of present applicant is similar and identical to that of co-accused Smt. Parvati Kushwaha who has already been enlarged on bail. There is nothing on record to distinguish the case of present applicant from aforementioned co-accused. The motive that is assigned to the applicant for committing the crime in question prima-faice does not stand established and is subject to trial evidence, the clean antecedents of applicant, the period of incarceration undergone, irrespective of the fact that the charge sheet has already been submitted, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.

8. Accordingly, the bail application is allowed.

9. Let the applicant-Deshraj @ Chhotu Kushwaha, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

10. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 2.8.2023

Vinay