Arvind Alias Gajni vs State Of U.P.
2023 Latest Caselaw 22331 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:166769
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33767 of 2023
 

 
Applicant :- Arvind Alias Gajni
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Arjun Singh Solanki
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Prakhar Tandon, Advocate, holding brief of Mr. Arjun Singh Solanki, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Arvind Alias Gajni, seeking his enlargement on bail in Case Crime No. 753 of 2022, under Sections 302, 394, 34, 411 IPC, Police Station-Kasganj, District-Kasganj during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 07.11.2022, a delayed FIR dated 15.11.2022 was lodged by first informant-Shahid Noor (brother of the deceased) and was registered as Case Crime No. 753 of 2022, under Sections 302 IPC, Police Station-Kasganj, District-Kasganj. In the aforesaid FIR, 2 persons namely- (1) Jay Prakash and (2) Dinesh @ Bhutani have been nominated as named accused.

5. The gravamen of the allegations made in the FIR to the effect that named accused took away the brother of the first informant at 05:00 PM on 07.11.2022. However, subsequently, the brother of the first informant was put to death by causing injuries on his head with a brick.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The dead body of the deceased was recovered by the police. Thereafter, inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was characterized as homicidal. Subsequent to above, post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted the autopsy of the body of deceased found following ante-mortem injuries on the body of deceased:-

"1. Lacerated wound of size 02x01cm on (Rt.) side of head 02cm bone from right ear.

2. Lacerated wound of size 03x1.5cm on (Rt.) ear.

3. Lacerated wound of size 02x01cm on left side of head of size 05 cm above from left ear.

4. Multiple abrasion on (Rt.) side of neck in area 09x0.6cm.

5. Contusion of size 04x02cm on left parietal area.

Note:-

1. On dissection of skull (Rt.) side perital bone fracture membraine and brain is lacerated about 200ml free and clotted blood present.

2. Viscera preserved to rule out any drug intoxication/poisoning if any as required by police person.

3. 5 Syringe (5ml) and one match box x20cm preserve received cosharer is present the body kit alongwith body preserved for during/Poisoining and send to F.S.L. sealed Handed over to accompanied police constable."

7. In the opinion of Autopsy Surgeon, the cause of death of the deceased was Comma as a result of ante-mortem head injury. During course of investigation, Investigating Officer examined the first informant and the other witnesses under Section 161 Cr.P.C. In the statement of the witnesses so examined, the complicity of the named accused has emerged in the crime in question. Accordingly, the named accused were arrested. Subsequent to above, the confessional statement of the accused Jay Prakash was recorded wherein he also confessed the complicity of the present applicant in the crime in question. Applicant was thus arrested and on his pointing out, the mobile phone of the deceased was recovered. On the basis of above and other material collected by Investigating Officer, during course of investigation, he came to the conclusion that complicity of applicant is also established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 12.02.2023 whereby named accused Jay Prakash , Dinesh @ Bhutani and applicant-Arvind Alias Gajni, a not named accused have been charge sheeted under Section 302, 394, 34, 411 IPC.

8. Learned counsel for applicant contends that applicant is not named in the FIR. Applicant is innocent. Present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence. The complicity of applicant in the crime in question has to be judged in the light of parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Paragraph 152) wherein court has laid down the parameters which are required to be established for inferring the guilt of an accused in a case based on circumstantial evidence. The recovery is false as there is no independent witness of the recovery. However, up to this stage, none of the parameters laid down by Apex Court in aforementioned judgment are satisfied against applicant. No strong motive for committing the crime in question has emerged against applicant either. The only evidence that has emerged against applicant whereby the complicity of applicant is said to be established in the crime in question is the confessional statement of co-accused Jay Prakash and the recovery of the mobile phone of the deceased from the present applicant. The learned counsel for applicant contends that such recovery was made after 25 days from the date of occurrence. With regard to the credibility of the confessional statement of co-accused, it is submitted that the same is inadmissible piece of evidence and therefore, complicity of applicant in the crime in question cannot be held to be established primarily on the basis of above.

9. Even otherwise, applicant has criminal history of 2 criminal cases which has been substantially explained in paragraph 18 of the affidavit filed in support of present application for bail. In view of above, the rigours of the law laid down by the Apex Court in Neeru Yadav Vs. State of U.P. (2014) 16 SCC 508 are not attracted. Applicant is in jail since 10.02.2023. As such, he has undergone more than 6 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Thus, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends 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.

10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the 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, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that applicant is not named in the FIR, present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, up to this stage, prima-facie, the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (Supra) are not satisfied against applicant, no strong motive has emerged against applicant for committing the crime in question either, the only evidence that has emerged against applicant is the recovery of the mobile phone of the deceased on the pointing of applicant after 25 days from the date of occurrence, which is seriously disputed by the learned counsel for applicant, the recovery is said to be false as there is no independent witness of the recovery, in spite of the fact that the charge sheet has been submitted and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands cyrstallized yet 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 Apex Court in Neeru Yadav (Supra), the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merits of the case, applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Arvind Alias Gajni, 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.

14. 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 :- 18.8.2023

Vinay