Sharan vs State Of U.P.
2023 Latest Caselaw 730 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 73
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23863 of 2022
 

 
Applicant :- Sharan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Dhiraj Kumar Pandey,Abhishek Singh,Akshaivar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Siddharth,J.

Supplementary affidavit filed today is taken on record.

Heard learned counsel for the applicant and learned A.G.A. for the State.

As per contents of FIR, the incident is said to have occurred on 8th January 2022 at about 10.30 P.M. when the applicant along with co-accused is said to have assaulted and grievously injured the deceased, Siraj, who is son-in-law of the first informant. It is stated that attack occurred on account of deceased refusing to bow to extortion and threats of the applicant and co-accused with regard to protection tax. The F.I.R. also indicates three persons namely Muaz, Fazil and Nasim to be eye witness accounts.

Learned counsel for applicant submits that the applicant has been falsely implicated regarding the charges levelled against him. It is submitted that charge sheet has been field under Sections 302, 386 and 34 IPC but submits that as per post mortem report, there is only a single anti mortem injury of stab wound which is through and through the right knee and lower thigh with an exit wound also being indicated. It is thus submitted that injury clearly is on a non vital organ of the body and therefore there can not be any conviction under Section 302 IPC. Attention has also been drawn to the fact that although one Muaz has been indicated as eye witness of incident but the said person is also a witness to the inquest and clearly states that he came to the district hospital upon gaining information about the attack on deceased who also happens to be his brother. As such it is submitted that there is serious contradiction in the alleged eye witness account It is further submitted that other eye witnesses also indicated presence of Muaz in their statements and since the said Muaz himself is giving contradictory statement with regard to his being eye witness, the statements of other eye witnesses also are not reliable. It is submitted that applicant is in custody since 12th January, 2022 with trial only at its inception whereas there are total 24 prosecution witnesses as per charge sheet.

Learned A.G.A. appearing on behalf of State as well as learned counsel for informant have opposed bail application with the submission that first informant is not an eye witness account and therefore any discrepancy in the F.I.R. is liable to be ignored. It is further submitted that even ignoring eye witness account of Muaz, there are two other eye witness accounts which are not at all contradictory to the allegations levelled in the F.I.R. However it is admitted that there is single stab wound on the thigh of deceased.

Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that although allegations under Section 302 IPC read with Section 34 IPC have been levelled against the applicant and co-accused, the post mortem report indicates only a single stab wound on the thigh of deceased. The aspect as to whether conviction can or may be recorded under Section 302 IPC read with Section 34 IPC or under Section 304 IPC is a subject matter of trial upon consideration of relevant events and no comment thereupon can be made at this stage. However it does appear that the single stab wound injury which as per post mortem report is the cause of death thus appear to be on a non vital organ of the body. Eye witness account of Muaz as indicated in the F.IR. also is contradicted by statement of Muaz himself as a witness of inquest. The other two eye witness accounts also indicate presence of Muaz which Muaz himself contradicts and as such reliability or otherwise of the statements of other two alleged eye witnesses is also subject matter of evidence. Co-accused, Kasif, has been enlarged on bail vide order dated 19.12.2022 in Criminal Misc. Bail Application No.18001 of 2022. Applicant has criminal history of seven cases explained in the supplementary affidavit.

Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant, Sharan, involved in Case Crime No.10 of 2022, under Sections 302, 386 I.P.C and 34 I.P.C, Police Station Qutubsher, District- Saharanpur be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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 of the Indian Penal Code.

(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

The trial court is directed to conclude the trial against the applicant as expeditiously as possible, preferable within a period of two years from the date of production of certified copy of this order.

Order Date :- 9.1.2023

SS