Pankaj Rai vs State Of U.P. And 2 Others
2023 Latest Caselaw 1392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 67
 

 
Case :- CRIMINAL APPEAL No. - 2273 of 2022
 

 
Appellant :- Pankaj Rai
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Appellant :- Jai Prakash Singh,Sanjay Kumar Pal
 
Counsel for Respondent :- G.A.,Syed Mohammad Abbas Abdy
 

 
Hon'ble Rahul Chaturvedi,J.

Heard Shri I.K. Chaturvedi, learned Senior Advocate, assisted by Shri Sanjay Kumar Pal, learned counsel for the appellant; Shri S.M.A. Abdy and Shri Ranjit Kumar, learned counsel for the opposite party no.2 as well as Sri Ghanshyam Kumar, learned counsel representing the State. Perused the record including paper-book of the appeal.

The instant criminal appeal under Section 14 A (2) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") is targeted against the impugned order dated 24.03.2022 passed by the learned Special Judge (SC/ST Act), Azamgarh while rejecting the Bail Application No.818 of 2022 (Pankaj Rai vs. State of U.P.). The appellant is facing prosecution in Case Crime No.149 of 2021, under Sections 147, 148, 149, 323, 325, 504, 506, 308, 302 I.P.C. and Sections 3(1)Da, 3(1)Dha, 3(2)V of the S.C./S.T. Act, Police Station-Sidhari, District-Azamgarh. The appellant is behind the bars since 18.11.2021.

The gravamen as culled out from the F.I.R. is that for the alleged incident dated 29.6.2021 around 18.00 hours, the present F.I.R. came into existence on 30.6.2021 at 11.11 hours by one Rajesh Saroj, naming five persons including the appellant and two unknown persons as accused. It is born out that the informant Rajesh Saroj, who himself lodged the present F.I.R., succumbed to the injuries sustained by him and eventually died. From the F.I.R. it is also born out that on account of local panchayat elections, named accused persons including the appellant on 29.6.2021, when the informant was coming back from R.T.O. office on his motorcycle, was assaulted by the named accused persons after giving him a deadly dash to his vehicle. Thereafter, all of them have assaulted wielding their respective hockey and iron rod and hurled filthy abuses to him after taking his caste name in a derogatory way. However, the entire incident took place over the highway in a secluded place with no public audience. After the assault, responding to the screams and shouting of the informant, the passerby and some of his acquaintances reached on spot and saved his life. After their arrival, the assailants took to their heels. On these factual premises, it was urged by learned counsel for the appellant that :

(a) The informant Rajesh Saroj before succumbing to the injuries received by him, has given a TEHRIR to the police narrating the entire scenario of the incident, which later on converted into the F.I.R., and that is why, the F.I.R. was initially registered u/s 147, 148, 149, 323, 325, 504, 506 I.P.C. and Sections 3(1)Da, 3(1)Dha and 3(2)V of SC/ST Act.

(b) The entire incident, admittedly, took place on the highway, where there was nobody in the vicinity or in public audience, as such the derogatory caste remark alleged to have been made by the appellant against the informant has got no impact on his personal esteem, and thus, the provisions of SC/ST Act would not apply.

(c) In this transaction there was indiscriminate wielding of hockey and iron rod upon the informant, who later on died without giving any statement to the police.

(d) Despite of the fact that the assailants were carrying firearm (Katta), they preferred to use hockey and rod and not the firearm, which clearly indicates that the assailants have got no intention to kill the informant.

(e) The genesis of the case is local panchayat elections and its related animosity. The constituency of the election was declared for the scheduled caste community, while the appellant does not belong to scheduled caste community, and thus, he has got no interest in the elections as he cannot even contest the elections.

Addressing further Shri I.K. Chaturvedi, learned Senior Counsel has drawn attention of the Court towards injury report of the injured, annexed as Annexure-2, showing the number and seat of the injuries sustained by the deceased. There are as many as 11 injuries over his person and all are caused by the hard and blunt object. X-ray was advised and all injuries were examined on the date of incident i.e. 29.6.2021 itself.

The deceased was initially admitted to Lifeline Hospital, Azamgarh (a private hospital) at Azamgarh and was got discharged against medical advice. Medical examination report of the injured indicates that he came to the hospital and was diagnosed assault traumatic brain injury with impaired glucose tolerance, with fracture femur right side with proximal tibia fracture right patela fracture. The patient Rajesh Saroj was admitted with above complaints. CT Head WNL. X-ray right thigh, right femur was found fractured, right leg was also found fracture, proximal tibia right side. Right knee joint was also shown to be fractured. Investigation was also sepsis with derranged renal and liver function. Continued hospitalization was advised but attendants were no more interested in keeping the patient in hospital and were forcing to discharge the patient and they got discharged him against medical advice on 3.7.2021.

The statement of brother of the deceased Virendra Kumar Saroj u/s 161 Cr.P.C., who broadly supported the prosecution case by making a mention that on account of this assault the right leg of the deceased was found fractured from three places. When the deceased was admitted to the District Hospital, Azamgarh, he was in senses and disclosed the name of assailants. Contention raised by learned counsel for the appellant is that the deceased was brutally and mercilessly was assaulted by all named accused persons. After getting discharged from Lifeline Hospital, Azamgarh he was taken to Varanasi, where he ultimately died on 7.7.2021. During course of investigation, the I.O. of the case in his one of the earliest Parchas has clearly mentioned that the injured was undergoing treatment at Varanasi. The Investigating Officer (C.O.) has tried to contact Virendra Kumar Saroj, brother of the deceased on mobile, who clearly states that his brother is undergoing treatment and is not in a position to give any statement to the police. Thus, from the statement it is clear that after the incident, the deceased was conscious for a while and was given a written TEHRIR narrating the incident and name of the assailants, but on account of ill-providence, during treatment, he died.

The postmortem report of the deceased too indicates that there are 11 injuries over his person and he died on account of coma as a result of head injury contributed sepsis of lungs. Injuries disclosed that except injury No.5, there is contused swelling over the back side of the head. All injuries are either on the forearm or on the right leg. During his lifetime the informant disclosed the name of assailants but has been unable to spell out the role played by the individual assailants. From the F.I.R. it is clear that there are five named accused persons and two unknown. At the cost of repetition, it is submitted by learned counsel for the appellant that there was indiscriminate wielding of hockey and rod by all seven accused persons and there is no specific role attributed to any individual, thus, the appellant is entitled for bail.

Per contra, Shri S.M.A. Abdy, learned counsel for the opposite party no.2 refuted the contentions raised by learned counsel for the appellant by drawing attention of the Court to the contents of counter affidavit sworn by Anjali Saroj (wife of the deceased). It is further contended by the counsel for the opposite party no.2 that Virendra Saroj and Ashwini Saroj after inordinate delay have filed affidavits claiming themselves as an eye witness to the incident. He further states that they have arranged the Ambulance of which the deceased was carried to the hospital. In addition to this, it is also asserted by Sri Abdy, learned counsel for the opposite party no.2 that it is Virendra Saroj who has lodged FIR on behalf of his deceased's brother on the very next day i.e. 30.06.2021. As mentioned above, despite of the fact, it is further submitted that at relevant point of time when the deceased was referred to the higher centre, then he was in conscious but no formal dying declaration was recorded of the deceased.

It has been contended by learned counsel that there is specific allegation that the assailants are influential persons, having strong political links and thus they have managed that the F.I.R. could not be lodged. After great deal and efforts, the present F.I.R. came into existence only on the next date on 30.6.2021 at 11.11 hours after knocking the doors of all political higher-ups. It is alleged that the appellant and the local police of Police Station Sidhari were hand in gloves with each other, but as mentioned above, the injured-deceased was conscious for a while and that is why he managed to give a hand-written TEHRIR and it is only after his unfortunate demise the texture of the case was converted into Section 302 I.P.C. This TEHRIR should be taken as his dying declaration, as his last words.

Learned counsel for the opposite party Shri S.M.A Abdi further submits that the assailants were armed with deadly weapons i.e. hockey and iron rod and they indiscriminately assaulted upon the injured, who later on died in a most inhumane way over the highway and number of injuries over the deceased clearly indicates the involvement of appellant in commission of offence. Since the action is being taken in furtherance of a common object and that why Sections 147, 148, 149 I.P.C. are pasted in the array of sections. Shri Abdi has placed reliance upon the recent judgment of Hon'ble Apex Court in KUMER SINGH VS STATE OF RAJASTHAN & ANR decided on 20th July, 2021 in Criminal Appeal No.571 of 2021 and learned counsel has emphasized upon Para-14 of the judgment, which is reproduced here in below :

"14. The submission on behalf of the accused that the accused were alleged to have been armed with lathis and therefore they were released on bail is concerned, at the outset, it is required to be noted that all the accused are charged for the offences punishable under Sections 302 and 307 read with Section 149 of the IPC. At this stage, the individual role of the accused is not required to be considered when they are alleged to have been the part of the unlawful assembly. There were 26 injuries found on the dead body of the deceased and 11 injuries on the injured Vikram Singh by blunt and sharp weapons. Therefore, merely because they were armed with lathis cannot be a ground to release them on bail, in the facts and circumstances of the case, ........."

In rebuttal to the aforesaid proposition of law, the learned counsel for the for the appellant Shri I.K. Chaturvedi has cited a judgment of Hon'ble Apex Court in the case of ALLAUDDIN MIAN & ORS SHARIF MIAN & ANR vs STATE OF BIHAR, 1989 AIR 1456, whereby while assessing the merit of Section 149 of I.P.C. the Hon'ble Apex Court has opined thus :

"(3)Section 149 I.P.C., creates a specific offence. Since this section imposes a constructive penal liability, it must be strictly construed. [509G] 500

(4) It is not the intention of the legislature in enacting section 149 to render every member of an unlawful assembly liable to punishment for every offence committed by one or more of its members. In order to invoke section 149 it must be shown that the incriminating act was done to accomplish the common object of the unlawful assembly. Even if an act incidental to the common object is committed to accomplish the common object of the unlawful assembly, it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object they would be liable for the same under section 149 I.P.C."

In the instant case, there is no dispute that there was an assault by five named and two unknown persons by their respective hockey and iron rod. The injured has sustained 11 injuries, mostly on the non vital part of the body. It is also admitted in the F.I.R. that they were carrying Katta also in their hands at the relevant point of time. If, at all there was any intention to eliminate the deceased, they would have given Katta injury over his person and killed him, but instead of this, they have assaulted him by different weapons, that too on the non-vital part of the body by which he died after 10 days of the incident during treatment at different hospital. In totality of the circumstances, it seems to be an unswallowable proposition to suggest that every member/assailant was aware or having a common object to eliminate the deceased. The appellant is seeking bail who is having no criminal antecedents and on account of animosity of local panchayat elections, false insertion of appellant's name cannot be ruled out, and moreover, there is no incriminating recovery from the possession of the appellant. So far as written ''TEHRIR' given by the informant is concerned, in that too, he has, during his life time attributed a general role of assault to all the accused persons. Taking for the sake of argument that ''TEHRIR' too would not be of much help to the prosecution.

So far as criminal antecedent of the applicant is concerned, the applicant has got only criminal case to this credit, in which final report has already been submitted. In addition to this, Sri Abdy, learned counsel for the opposite party no.2 submits that during this period Anjali Saroj, wife of the deceased has managed to lodged FIR under Sections 506 IPC and Section 3(2)(V) SC/ST Act on 28.11.2021 against on Guddu Rai whereas Satendra Kumar, brother of the deceased too managed to lodge an FIR on 30.12.2021 against Santosh Kumar Pal for the alleged act of extending threats and intimidation and on this basis, learned counsel for the informant asserted that the informant and his family members are reeling under immense threat from the side of the accused persons.

The nature of the FIR clearly indicates that this could be tailored one, just to keep the applicant inside the jail for unlimited period. As mentioned above, the applicant has got only one criminal case in which closure report has been filed and learned counsel for the informant wants to multiply by manifold. However, it is open for the informant to contact the S.S.P, Azamgarh raising all his grievance regarding threat perception and the SSP, Azamgarh after assessing the threat perception would pass appropriate orders.

Sri Abdy, learned counsel for the opposite party no.2 has relied upon the judgement of Hon'ble Apex Court in the case of Shakuntala Shukla Vs. State of U.P. reported in 2021(10)ADJ 288(SC) to buttress his contention. The ratio laid down in the case of Shauktala (supra) is distinguishable from the facts of the present case and therefore the aforesaid case law does not go to help him.

The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.

Let the appellant-Pankaj Rai, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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 APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.

(ii) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE 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.

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

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

(v) THE APPELLANT 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 APPELLANT 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 HIM IN ACCORDANCE WITH LAW.

However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.

Keeping in view that though the complainant belongs to the scheduled caste community and as per arguments of learned counsel for the complainant that the accused/appellant who belongs to a higher caste, after his release, may create all sorts of impediments in the smooth trial and may extend allurement and threats to the informant, his family members as well as other witnesses, thus, it is directed that in such eventuality, all these complaints may be raised by the complainant before the Superintendent of Police concerned who would examine objectively after having reports from his agencies at the earliest with regard to threat prospective of complainant and his family members and use his own discretion in the matter, if it desirable, then during trial may provide security to complainant and his near family members.

Accordingly, the appeal succeeds and same stands ALLOWED. Impugned order dated 24.03.2022 passed by the learned Special Judge (SC/ST Act), Azamgarh, is hereby set aside.

Order Date :- 13.1.2023

Abhishek Sri.