Ramkaran Nishad vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 19087 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:49164
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 438 of 2023
 
Appellant :- Ramkaran Nishad
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt., Lko. And Another
 
Counsel for Appellant :- Manoj Kumar Mishra,Piyush Tripathi,Shivam Srivastava
 
Counsel for Respondent :- G.A.,Dharmendra Kumar
 

 
Hon'ble Shamim Ahmed,J.

1. Counter affidavit filed on behalf of State and in reply thereto rejoinder affidavit filed by the learned counsel for the appellant are on the record.

2. Despite time granted to Shri Dharmendra Kumar, the learned counsel for the opposite party No. 2 vide order dated 14.07.2023 for filing counter affidavit, till today he has not filed any counter affidavit and submits that he will argue the case in absence of counter affidavit.

3. Heard Shri Manoj Kumar Mishra, the learned counsel for the appellant, Ms. Charu Singh, the learned A.G.A. for the State-opposite party No. 1 and Shri Dharmendra Kumar, the learned counsel for the opposite party No. 2 and perused the record.

4. The present criminal appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 04.02.2023 passed by the court of learned Additional District & Sessions Judge/Special Judge, SC/ST Act, Faizabad in Bail Application No. 191 of 2023, arising out of Case Crime No. 22 of 2023, under Sections 323, 504, 506, 307 I.P.C. read with Section 3(2)v of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Bikapur, District Ayodhya, whereby the bail application of the appellant has been rejected.

5. Learned counsel for the appellant submitted that appellant is an innocent person and has been falsely implicated in the present case due to enmity and for financial dispute. No such incident took place as alleged by the prosecution. He further submitted that appellant in fact appellant has put some mud and other agricultural work in the field of complainant on his direction by his tractor for which Rs. 5,300/- was due upon the complainant, he was regularly asking the complainant to pay his due amount, on account of which the complainant became annoyed and on 27.12.2022 the complainant threatened him by saying that if he will again make demand of his money he will implicate him in the case falsely. Thus, with intention to not to pay the due amount the present F.I.R. has been lodged on totally false and fabricated facts.

6. Learned counsel for the appellant further submitted that as per the version of the F.I.R. the complainant alleged that his father is running a liquor shop in the village, on 13.01.2023 at about 8:30 p.m. when the complainant was present on the shop the appellant along with Rampooran Yadav and Kashiram Yadav came there and demanded liquor on credit, when he denied, the appellant while abusing him by caste assaulted him with iron rod, on account of which the complainant sustained head injury and fell down on the ground, thereafter, Rampporan Yadav and Kashiram Yadav started assaulting him by kicks and fists, on account of which he became unconscious. It is further stated in the F.I.R. that accused persons while going away from the spot also threatened him for life.

7. Learned counsel for the appellant further submitted that the entire story as alleged in the F.I.R. is false and fabricated and the same has been lodged only to avoid to pay the money which was due upon the complainant. This fact has been clearly stated in the impugned bail rejection order.

8. Learned counsel for the appellant further submitted that the false injury report was also prepared and five injuries were shown therein which are as under:

(i) Lacerated wound on occipito parietal region of head size approx. 3.0 x 0.5 c.m., advice CT head.

(ii) Lacerated wound on parietal region of head size approx. 1.0 x 0.5 c.m.

(iii) Abrasion with swelling on fronto-parietal region of head size 6.0 x 4.0 c.m.

(iv) Lacerated wound on Rt. side parietal region of head size approx. 3.0 x 0.5 c.m.

(v) swelling with abrasion on the lower lip Rt. side size approx. 0.5 x 0.3 c.m.

Opinion:- All injury is hard and blunt type object and advice CT head for radiologist opinion, injury no. 1 and 2 and injury no. 3, 4 and 5 is simple in nature. Duration fresh.

9. Learned counsel for the appellant further submitted that C.T. scan of the complainant/ injured was also done, which report is being reproduced as under:

NON-CONTRAST CT BRAIN

TECHNIQUE : Axial sections of the brain were performed without intravenous contrast.

FINDINGS:

Hypodensity is seen in both external capsules.

The cerebral hemispheres and basal ganglia otherwise demonstrate normal attenuation without focal abnormality.

The cerebellar hemispheres and brain stem are unremarkable.

No obvious intracranial hemorrhage, mass effect or midlinse shift.

The ventricles, sulci and basal cisterns are unremarkable.

The calvarium is unremarkable. No calvarial fracture is seen.

The mastoid air cells are clear.

Right maxillary, right ethmoid and right frontal sinusitis is seen.

Retention cyst/polyp is seen in right maxillary sinus.

Soft tissue swelling is seen in both parietooccipital scalp.

IMPRESSION:

No intracranial hemorrhage or calvarial fracture.

Subtle small vessel ischemic disease.

10. Learned counsel for the appellant further submitted that nothing has come in the C.T. Scan report to show any injury on the vital part of the complainant which would be dangerous to his life. Thus, it has been argued that provision of Section 307 I.P.C. as mentioned in the charge sheet is not attracted.

11. Learned counsel for the appellant further submitted that the appellant is an innocent person and has been falsely implicated. He further submitted that there is no any independent eye witness of the alleged incident except the father of the complainant who is an interested witness and the appellant has been roped in the case falsely due to enmity and with malafide intention, thus, the bail application of the present appellant may be allowed by this Court sympathetically and the impugned bail rejection order passed by the trial court may be set aside.

12. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that criminal history of appellant has been explained in para-9 of the rejoinder affidavit dated 07.07.2023. It has further been argued that appellant is in jail since 19.01.2023 and that in the wake of heavy pendency of cases in the court, there is no likelihood of any early conclusion of trial.

13. Learned A.G.A. for the State submits that appellant is involved in alleged crime, therefore, his prayer for bail may be rejected.

14. Learned counsel for the opposite party No. 2 submits that appellant's involvement is very much clear from the version of the F.I.R. and he hit the complainant on his head which caused injury to the complainant, therefore, prayer of bail of appellant may be rejected.

15. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, nature of evidence, period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there was some dispute regarding money which was not being given by the complainant to the appellant, which fact has also been came in the bail rejection order, thus, there appears force in the argument of learned counsel for the appellant that due to dispute of money the appellant has been implicated in the case falsely with malafide intention; further in the injury report five injuries were shown, but nothing has come in the C.T. Scan report on the vital part of the complainant which would be dangerous to his life, thus, there appears force in the argument of learned counsel for the appellant that false injury report has been prepared, therefore, provision of Section 307 I.P.C. as mentioned in the charge sheet is not attracted; there appears also force in the submission of learned counsel for the appellant that there is no any independent eye witness of the alleged incident and the appellant has been roped in the case falsely due to enmity and with malafide intention; and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned trial court has failed to appreciate the material available on record. Thus, the impugned bail rejection order passed by the trial court is liable to be set aside.

16. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 04.02.2023 passed by the court of learned Additional District & Sessions Judge/Special Judge, SC/ST Act, Faizabad in Bail Application No. 191 of 2023, arising out of Case Crime No. 22 of 2023, under Sections 323, 504, 506, 307 I.P.C. read with Section 3(2)v of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Bikapur, District Ayodhya, is hereby set aside and reversed.

17. Let the appellant, Ramkaran Nishad, be enlarged on bail in Case Crime No. 22 of 2023, under Sections 323, 504, 506, 307 I.P.C. read with Section 3(2)v of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Bikapur, District Ayodhya, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

(vii) The appellant shall remain present, 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 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.

18. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

19. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 26.7.2023

Mustaqeem