Shahrukh vs State Of U.P. And Anr.
2023 Latest Caselaw 19101 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:49087
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 506 of 2021
 

 
Appellant :- Shahrukh
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Prashant Singh Atal,Istekhaf Khan,Nadeem Murtaza,Yash Pandey
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Sri Nadeem Murtaza, learned counsel for the appellant, Sri Ashok Kumar Singh, learned A.G.A.-I for the State and perused the entire record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 08.10.2020 passed by learned Special Judge, S.C./S.T. Act, Pratapgarh in Bail Application No.1586 of 2020, Case Crime No.410/2020, under Sections 147, 148, 149, 323, 504, 506, 307, 302 I.P.C. and Sections 3(1)(Da)/3(1)(Dha), 3(2)(V)(Ka) and 3(2)(V) S.C./S.T. Act, Police Station Kotwali Nagar, District Pratapgarh, whereby the bail application of the appellant has been rejected.

As per office report dated 26.10.2021, notice has already been served upon opposite party no.2 but neither any counter affidavit has been filed till date nor any counsel is present to represent the opposite party no.2. As such, it appears that opposite party no.2 is not interested to contest this case.

Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed further in the matter.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. The appellant was not present at the spot of alleged incident. The true facts of the incident are that the deceased was shot dead by some unknown persons and the name of the appellant alongwith other co-accused persons has been wrongly roped in the incident with ulterior motive for settling personal enmity.

Learned counsel for the appellant further submits that the complainant, Ashish Kumar Saroj in his statements before the learned trial court dated 29.09.2021 and 07.12.2021 has been turned hostile and has denied the presence of the appellant at the place of alleged incident and has also denied the entire prosecution story of the first information report. Learned counsel further submits that just on the basis of hearsay, the complainant has lodged the present F.I.R. even he is not the eye witnesses. Copy of the statement of the complainant is filed as annexure S.A.-I to the supplementary affidavit dated 27.07.2022.

Learned counsel for the appellant further submits that other witnesses, namely, Sanjay Kumar Saroj and Rajkumar Saroj in their testimonies before the trial court have also discarded the entire prosecution story in totality and have not assigned any role to the appellant of firing in the incident and have also not identified the present appellant. The statements of the injured witnesses have also been filed as annexure S.A.-II to the supplementary affidavit dated 27.07.2022.

Learned counsel for the appellant further submits that other injured witnesses, namely, Sunil Kumar, Avnish Kumar Saroj, Pradeep Kumar and Ravi Kumar have also not supported the prosecution case and were declared hostile. Copy of statements of above witnesses have also been filed alongwith supplementary affidavit dated 07.07.2023. Thus, from the statements of the above witnesses, it is crystal clear that the appellant was not involved in the alleged crime and his name was taken due to enmity and village party bandi. Learned counsel further submits that in the post mortem report of the deceased, only one entry and one exit wound is reported whereas two persons have been assigned the role of firing.

Learned counsel for the appellant further submits that none of the witnesses including injured witnesses as well as the complainant have supported the prosecution case and the involvement of the appellant was not found. Thus, it is a case of false implication.

In support of his contention, learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the appellant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

Learned counsel for the appellant further submits that ratio of law applicable in aforesaid cases is also applicable in the case of the present appellant, therefore, the appellant be enlarged on bail by this Court sympathetically.

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 the accused is in jail since 15.05.2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. There is a criminal history of appellant of two cases, which have been explained in para 29 of the affidavit filed in support of the bail application.

Learned A.G.A.-I opposed the prayer for bail, however, he is unable to dispute the contention raised by learned counsel for the appellant that all the witnesses including injured witnesses as well as the complainant have turned hostile. He further submits that there is a serious allegation of killing one person against the appellant. Thus, the appellant is not entitled to be enlarged on bail.

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, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the appellant was not present at the spot of alleged incident, all the witnesses including injured witnesses as well as the complainant have turned hostile before the trial court, no role of firing has been assigned to the appellant even the witnesses have not identified the present appellant 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, (2018) 3 SCC 22, Kamal Vs. State of Haryana (Supra) and Takht Singh Vs. State of Madhya Pradesh (Supra), this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 08.10.2020 passed by learned Special Judge, S.C./S.T. Act, Pratapgarh in Bail Application No.1586 of 2020, Case Crime No.410/2020, under Sections 147, 148, 149, 323, 504, 506, 307, 302 I.P.C. and Sections 3(1)(Da)/3(1)(Dha), 3(2)(V)(Ka) and 3(2)(V) S.C./S.T. Act, Police Station Kotwali Nagar, District Pratapgarh is hereby set aside and reversed.

Let the appellant, Shahrukh be released on bail in the Case Crime No.410/2020, under Sections 147, 148, 149, 323, 504, 506, 307, 302 I.P.C. and Sections 3(1)(Da)/3(1)(Dha), 3(2)(V)(Ka) and 3(2)(V) S.C./S.T. Act, Police Station Kotwali Nagar, District Pratapgarh 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.

(viii) 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.

Order Date :- 26.7.2023

Saurabh