Sunil Kumar vs State Of U.P.
2023 Latest Caselaw 22133 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:165743
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30414 of 2023
 

 
Applicant :- Sunil Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajeev Tiwari,Brij Kishor Singh
 
Counsel for Opposite Party :- G.A.
 
Connected with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11820 of 2023
 

 
Applicant :- Jitendra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anjani Kumar Dubey,Saurabh Mishra
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Anurag Kumar Pandey, Advocate, holding brief of Mr. Brij Kishor Singh, the learned counsel for applicants and the learned A.G.A. for State.

2. Perused the record.

4. These applications for bail have been filed by applicants-Sunil Kumar and Jitendra, seeking their enlargement on bail in Case Crime No. 642 of 2022, under Sections 147, 148, 149, 302, 201 IPC, Police Station-Kannauj, District-Kannauj during the pendency of trial.

5. Record shows that in respect of an incident, which is alleged to have occurred on 30.08.2022, a delayed FIR dated 03.09.2022 was lodged by first informant-Anita (wife of the deceased) and was registered as Case Crime No. 642 of 2022, under Sections 302, 201 IPC, Police Station- Kotwali Kannauj, District-Kannauj. In the aforesaid FIR, a solitary unknown person has been arraigned as an accused.

6. The gravamen of the allegations made in the FIR to the effect that the husband of the first informant and her nephew had gone to the field but they do not return even till late in the morning. Accordingly, a search was made to locate the whereabouts of the missing persons.

7. It is apposite to mention here that before aforementioned FIR was lodged, the dead body of the deceased Lal Singh was recovered on 01.09.2022. Thereafter, the inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of the death of deceased was characterized as homicidal. Subsequent to above, the post mortem of the body of deceased was conducted. In the opinion of Autopsy Surgeon, the cause of death of the deceased was shock and hemorrhage due to ante-mortem fire arm injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-

"1. Incised wound size 3.5 cm x 1.5 cm left mand just latral chin.

2. Fire arm entry wound 6 cm x 3. cm prestr on just below from left nipple in between further rib left lung heart cork with three metallic size 2.5 cm x 2.0 cm present posterior to Rt. lung.

3. Firearm entry wound 2.5 cm x 2.0 cm present on 2.0 cm medial from injury no 2 put in between throid further rib left lung spleen record for left bone back.

4. Fire arm entry wound 3.5 cm x 2.5 cm but on 3.0 cm latred from Rt nipple ret in between 3.4 rib left lung liver re from between 9th and 10th rib One metal recovered from seen 5th rib rt. side one metal re recovered from sixth rib at the b rib and back bone.

5. Puncture wound 1 cm x 1.0 cm 6.5 cm below from inferior angle.

6. Punture wound 12 cm x 1.0 cm 8.0 cm from angle of rt sep.

7. Panctured wound 1 cm x 1.0 cm on 12.00 cm medial from rt top sh.

8. one sealed bundle of cloth containing

9. one saled contain contain (1) cork with metallic shed one (2) metallic bullet two (3) two metal peren total fire item send to SHO Kannauj for further investigation."

7. After aforementioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. During course of investigation, Investigating Officer examined first informant and the following witnesses under Section 161 Cr.P.C.:-

(i). Anita

(ii). Ram Chandra

(iii). Rama Devi

(iv). Sant Ram

(v). Ram Sharan

(vi). Binna

(vii). Santosh Kumar

(viii). Dr. Pawan Kumar Verma

8. In the statement of aforesaid witnesses, the complicity of 5 persons namely - (1) Sudhir Alias Bhaggu, (2) Vinod, (3) Jiya Lal, (4) Sunil Kumar and (5) Jitendra came to surface. Accordingly, aforesaid persons were arrested by the Investigating Officer on different dates. During course of investigation, Investigating Officer made the following recoveries from the accused:-

(i). Recovery of one country made pistol (315 bore) and one empty cartridges has been made from Jitendra (Applicant herein)

(ii). Recovery of one country made pistol (315 bore) has been made from Vinod (co-accused).

(iii). Recovery of one country made pistol (315 bore) has been made from Jiyalal (co-accused)

9. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of aforementioned accused is established in the crime in question. He, accordingly, submitted the charge sheet no. 706 of 2022 dated 30.11.2022, under Section 302, 20p1, 147, 148, 149 IPC whereby the following 3 persons namely - (1) Jitendra, (2) Sudhier Alias Bhaggu and (3) Shiv Kumar Verma were charge sheeted followed by the supplementary charge sheet no. 706A of 2023 dated 02.03.2023, under Sections 302, 201, 147, 148, 149 IPC whereby the following 5 persons namely - (1) Parashuram Rajput, (2) Ramesh, (3) Jiyalal, (4) Vinod and (5) Sunil have been charge sheeted in the crime in question.

10. At the very outset, the learned counsel for applicants contends that applicant Sunil Kumar and Jitendra are charge sheeted accused yet they are liable to be enlarged on bail. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. On the above premise, it is thus urged that complicity of applicants in the crime in question has to be determined as per the parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Paragraph 152). However, up to this stage, none of the parameters laid down by the Apex Court in aforementioned judgment for inferring the guilt of an accused in a case based upon circumstantial evidence are satisfied against applicants. The complicity of applicant -Jitendra emerged in the confessional statement of co-accused Jiyalal. Subsequently, a country made pistol was also recovered from applicant-Jitendra. The complicity of applicant-Sunil Kumar has emerged in the statement of Ram Prakash (brother of the deceased). However, no recovery has been made from the applicant Sunil Kumar. He has then invited the attention of Court to the following bail orders :-

(i). Criminal Misc. Bail Application No. 59805 OF 2022 (Sudhir Alias Bhaggu Vs. State of U.P.) decided on 02.08.2023.

(ii). Criminal Misc. Bail Application No. 30957 OF 2023 (Vinod Vs. State of U.P.) decided on 31.07.2023.

(ii). Criminal Misc. Bail Application No. 28151 OF 2023 (Jiyalal Vs. State of U.P.) decided on 19.07.2023.

11. Referring to the bail order passed by this Court in the case of co-accused Jiyalal, he submits that the case of applicant-Jitendra is similar and identical to that of co-accused Jiyalal from whom recovery of country made pistol was made but he has also been enlarged on bail. On the same parity, he submits that applicant-Jitendra is also liable to be enlarged on bail.

12. Even otherwise, applicants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 13.01.2023. As such, they have undergone more than 7 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. He, therefore, contends that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

13. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicants are charge sheeted accused, therefore, they do not deserve any indulgence by this Court. The recovery of country made pistol was made on the pointing of applicant-Jitendra. As per the post mortem report, the deceased has sustained fire arm injury also. It is thus contended that the complicity of applicant-Jitendra is duly established in the crime in qusetion. On the above premise, the learned A.G.A. submits that no sympathy be shown by this Court in favour of applicants. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

14. Having heard, the learned counsel for applicants, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicants coupled with the fact that no recovery has been made from applicant-Sunil Kumar, the recovery of country made pistol has been made from applicant-Jitendra, however, the case of applicant Jitendra is similar and identical to that of co-accused Jiyalal, who has already been enlarged on bail, up to this stage, the learned A.G.A. could not point out any such distinguishing feature so as to distinguish the case of present applicants from the bailed out co-accused so as to deny them bail, the clean antecedents of applicants, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, but inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial but without making any comments on the merits of the case, applicants have made out a case for bail.

15. Accordingly, the bail applications are allowed.

16. Let the applicants-Sunil Kumar and Jitendra, be released on bail in the aforesaid case crime number on their 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.

17. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 17.8.2023

Vinay