Ajay Yadav vs State Of U.P.
2023 Latest Caselaw 14672 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:101096
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8564 of 2022
 

 
Applicant :- Ajay Yadav
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- P.K. Singh,Amit Kumar Srivastava,Arvind Kumar Kushwaha
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Amit Kumar Srivastava, learned counsel for applicant and Sri Sunil Srivastava, learned AGA for State.

2. Applicant-Ajay Yadav has approached this Court by way of filing present bail application seeking enlargement on bail in Case Crime No. 99 of 2021, under Sections 302, 307, 120B IPC and 7 Criminal Law Amendment Act, Police Station Mirzamurad, District Varanasi, after rejection of his bail application vide order dated 27.01.2022 passed by Sessions Judge, Varanasi.

3. According to FIR, Informant?s younger brother, aged about 15 years, when he was coming back to his house, two unknown miscreants came on motorcycle and started firing on him. He suffered firearm injury on abdomen and head and one girl, who was standing on road side, also received firearm injury. Younger brother of Informant was brought dead at Hospital.

4. Learned counsel for applicant submits that it was revealed during investigation that allegedly on same day, earlier deceased has some altercation with applicant and co-accused, in which a neighbour, namely, Bhaiya Lal, was alleged to have intervened. Applicant and co-accused have threatened them of dire consequences and later on they came alongwith a country made pistol and committed crime. It was also alleged that there were eye witnesses of occurrence.

5. Learned counsel further submits that it was a case of mistaken identity. Applicant and co-accused were not the real assailants. No one has identified the assailants. Alleged eye witnesses have stated that applicant and co-accused used to visit their shop or hotel which cannot be considered to be an evidence that they have witnessed the crime. Present applicant is a resident of District Mirzapur whereas occurrence has taken place at Varanasi. Recovery of an country made pistol was fabricated. Learned counsel also submits that similarly situated co-accused has already been granted bail by this Court.

6. Learned AGA appearing for State has opposed the prayer for bail and submits that occurrence was witnessed by eye witnesses. Applicant and co-accused were identified by number of eye witnesses. He refers statement of witnesses in order to state that applicant and co-accused were frequent visitors to some nearby shops and hotel, therefore, their identification was beyond doubt.

7. Learned AGA further submits that though co-accused, Suraj Dubey has been granted bail by this Court, however, the reasons given in bail order may not be in terms of judgments passed by Supreme Court in Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501 and Brijmani Devi vs. Pappu Kumar (2022) 4 SCC 497. Main role of firing has been attributed to present applicant from whose possession a country made pistol was also recovered.

8. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is no need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

9. In the present case, it appears that in order to take revenge of an earlier altercation with deceased, the assailants came prepared carrying a country made pistol and have started firing on deceased. During occurrence a girl, who was standing on road side, was also injured, however, she has not seen who committed crime.

10. There are eye witnesses account and their statements are also placed on record who have witnessed the entire incident, i.e., earlier altercation as well as that accused persons came thereafter and committed occurrence. Even a shop keeper has also witnessed the occurrence and identified applicant and co-accused. Therefore, at this stage, there is no substantial material to accept the argument of learned counsel for applicant that it is a case of mistaken identity, whereas contrary evidence on record, which has been read out before this Court, also indicates that applicant and co-accused were real assailants. Post mortem report of deceased and injury report of injured also corroborates prosecution story, so far as firing is concerned.

11. So far as parity is concerned, present applicant has been assigned main role of firing whereas co-accused, Suraj Dubey, was assigned role of driving motorcycle. Therefore, taking note of argument of learned AGA that reasons given in bail order of co-accused may not be in terms of judgments passed by Supreme Court in Manoj Kumar Khokhar (supra) and Brijmani Devi (supra), argument of parity cannot be accepted.

12. In view of above discussion and taking note that prima facie it is not a case of mistaken identity, specific role of firing was assigned to applicant, parity cannot be granted of an unreasoned order as well as that in the occurrence one person died and a girl was injured due to firing, no case of bail is made out.

13. Application is accordingly rejected.

14. Taking note that two prosecution witnesses have already been examined, Trial Court is directed to take endeavour to conclude trial expeditiously.

Order Date :- 10.5.2023

AK