Heera Lal Gautam vs State Of U.P.
2023 Latest Caselaw 35772 ALL

Allahabad High Court

Heera Lal Gautam vs State Of U.P. on 19 December, 2023

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:240626
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52324 of 2023
 

 
Applicant :- Heera Lal Gautam
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Manoj Pathak
 
Counsel for Opposite Party :- G.A.,Utsav
 

 
Hon'ble Rajeev Misra,J.
 

1. Heard Mr. Manoj Pathak, the learned counsel for applicant, the learned A.G.A. for State and Mr. Utsav, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Heera Lal Gautam seeking his enlargement on bail in Case Crime No. 83 of 2023, under Section 306 IPC, Police Station-Bara, District-Prayagraj during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 03.06.2023 a delayed FIR dated 17.06.2023 was lodged by first informant Lallu Prashad Nishad (father of the deceased) and was registered as Case Crime No. 83 of 2023, under Sections 376, 452, 506, 302 IPC and Section 5/6 POCSO Act, Police Station-Bara, District- Yamuna Nagar (Commissionerate Prayagraj). In the aforesaid F.I.R., applicant Heera Lal Gautam has been nominated as solitary named accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that applicant deliberately and forcibly committed sexual assault upon the daughter of the first informant i.e. the prosecutrix (deceased). Thereafter, applicant is alleged to have thrown the daughter of the first informant i.e. prosecutrix from the floor of the house.

6. It is apposite to mention here that after the occurrence had taken place but prior to the lodging of the FIR, the inquest (Panchayatnama) of the body of deceased was conducted on 18.06.2023. In the opinion of witnesses of inquest (Panch Witnesses) the nature of death of deceased nor the cause of death of deceased could be categorized or specified. The witnesses of inquest (Panch Witnesses) concluded that the death of deceased has taken place while, she was undergoing treatment as she had fallen from the roof. Subsequent to above, the post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon who conducted autopsy of the body of deceased, the cause of death of deceased was shock and Septicemia as a result of ante-mortem injuries. The autopsy surgeon found following ante-mortem injuries on the body of deceased:

(1) Multiple healed abrased back side of chest to upper abdomen.

(2) Healed abrasion 2 cm. x 1 cm. left has healed.

(3) Abraded contusion 3 cm. x 1 cm. right ankle.

(4) Contusion 4 cm. x 2 cm. on back side skull occipital region.

However, no injury was found on the private parts of the deceased. The Autopsy Surgeon collected samples from the body of deceased for pathological examination. There is no supplementary medico legal examination report of deceased on record.

7. During course of investigation, Investigating Officer examined the first informant and other following witnesses under Section 161 Cr.P.C.- (1) Laloo Prasad Nishad (First informant), (2) Asha Devi (eye witness), (3) Usha Devi (eye witness), (4) Pushpesh Yadav (eye witness), (5) Ram Bahadur (eye witness), (6) Dharamraj Yadav (eye witness), (7) Chhotey Lal, (8) Rita Devi, (9) Chhedi Lal, (10) Sanjay Lal, (11) Chhotey Lal, (12) Uma Shankar, (13) Nirmal Kumar Chamar, (14) Sinha, (15) Karuna, (16) Guddi Devi, (17) Ajay Kumar, (18) Gulab Kali, (19) Dr. Devendra Bahadur Singh, (20) Dr. Pundrik Dwivedi, (21) Phoolmati (eye witness), (22) Sheela Shukla, (23) Amarjeet Prashad, (24) Rakesh Prashad, (25) Dr. Uma Shankar Kushwaha (expert witness). The witnesses namely Chhedi Lal, Sanjay Lal, Chhotey Lal, Uma Shankar, Nirmal Kumar Chamar have submitted their notary affidavits. Witnesses Chhedi Lal and Sanjay Lal in their notary affidavits have stated that the deceased and the applicant were in relationship. The said theory has been supported in the statements of Phoolmati (mother of deceased), an eye witness and Sheela Shukla (Village Pradhan).

8. During course of investigation, Investigating Officer recovered the video recording of the marriage held on 03.06.2023 wherein the presence of applicant Heera Lal is established. However, there is no certificate in terms of Section 65-B of the I.T. Act regarding the same in the case diary. On the basis of above and other material collected by the Investigating Officer he came to the conclusion that death of deceased is culpable homicide not mounting to murder. According to the Investigating Officer the complicity of the present applicant is writ large in the crime in question. He, accordingly, submitted the charge sheet dated 18.08.2023, whereby applicant has been charge sheeted under Section 306 I.P.C. only.

9. Learned counsel for applicant contends that though applicant is a named and charge sheet accused yet applicant is liable to be enlarged on bail. An offence under Section 306 I.P.C. has to be considered on a conjoint reading of the provisions contained in Sections 106 and 306 IPC. However, upto this stage, there is nothing on record to show that the applicant has abetted, instigated or conspired in the commission of crime in question. There is nothing to show that deceased committed suicide on account of an immediate act of applicant. Moreover, no instigation can be inferred from the conduct of the applicant either. According to the learned counsel for applicant an offence under Section 306 I.P.C. is subject to trial evidence. To buttress his submissions, he has relied upon the following judgments:-

(i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163,

(ii). Gurcharan Singh Vs. State of Punjab (2020) 10 SCC 200.

(iii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737,

(iv). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251,

(v) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387,

(vi) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575.

10. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 19.06.2023. As such, he has undergone more than five 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 applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. To buttress his submissions he has relied upon the judgment of the Supreme Court in Sumit Subhaschandra Gangwal & Anr. Vs. The State of Maharastra & Anr. 2023 Live Law (SC) 373 (paragraph 5), 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 cooperate with the trial.

11. Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that deceased was a young girl aged about 16-17 years who committed suicide on account of an immediate act of applicant. However, they could not establish their objections from the material on record. As such, the submissions urged by the learned counsel for applicant in support of the present application for bail could not be dislodged with reference to the record.

12. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusation made coupled with the fact that varied submissions urged by the learned counsel for applicant in support of the present application for bail could not be dislodged by the learned A.G.A. and the learned counsel representing first informant with reference to the material on record, therefore, irrespective of the vehement objections raised by the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

13. Accordingly, the bail application is Allowed.

14. Let the applicant-Heera Lal Gautam, be released on bail in 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.

15. 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.

Order Date :- 19.12.2023

Imtiyaz