Kishan Pal vs State Of U.P.
2023 Latest Caselaw 27215 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:192328
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39150 of 2023
 

 
Applicant :- Kishan Pal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Jitendra Kumar Shishodia,Gyan Chandra
 
Counsel for Opposite Party :- G.A.,Radhey Krishna Pandey
 

 
Hon'ble Siddharth,J.

1. Rejoinder-affidavit filed by counsel for applicant is taken on record.

2. Heard SriJitendra Kumar Shishodia, learned counsel for the applicant; Sri Radhey Krishna Pandey, learned counsel for the informant as well as the learned AGA for the State and perused the material placed on record.

3. The instant bail application has been filed on behalf of the applicant,Kishan Pal, with a prayer to release him on bail in Case Crime No. 68/2014, under Sections 302, 506 IPC, Police Station Jasrana, District- Firozabad during pendency of trial.

4. There is allegation in FIR that the uncle of the informant, Jugendra Singh, was going on bicycle when on account of dispute regarding fair price shop license holding, the applicant and co-accused, Ashok Kuma and Asha Ram came on motorcycle and fired on him with intention to kill. At that time, the informant alongwith his uncle, Surendra Singh, came on the scene of the incident and after threatening them, the accused persons ran away.

5. Learned counsel for the applicant has submitted that the doctor has been examined as P.W.-4 before the trial court. He has stated before the trial court out of three injuries suffered by the deceased only one injury was caused by fire arm. He has submitted that out of three persons implicated in the FIR, who had caused fatal fire armed injury to the deceased is not clear. He has further submitted that the charges have been framed against the applicant only on 22.07.2022. No statement of any prosecution witness has been recorded till date. In pursuance of the earlier order of this Court, the statement of the deceased recorded under Section 161 Cr.P.C., has been brought on record by counsel for applicant by way of a supplementary-affidavit. Learned counsel for applicant has submitted that the aforesaid statement cannot be considered to be dying declaration of the deceased. Even if it is considered as dying declaration of the deceased without any admission, there is no specific role assigned to the applicant therein. General role of firing has been assigned to the applicant and co-accused, Ashok Kumar and Asha Ram, but from the statement of the doctor recorded before the trial court only one fire arm injury was found on the person of the deceased. Therefore, the implication of the applicant is unwarranted under the facts and circumstance of this case. The applicant has been falsely implicated in this case. He has no criminal history to his credit and is languishing in jail since 07.08.2020. The trial in the aforesaid case is not likely to be concluded in near future.

6. Learned counsel for informant has vehemently opposed the prayer for bail of the applicant and submitted that in view of the judgment of the Apex Court in the case of Pradeep Bisoi @ Ranjit Bisoi Vs. State of Odisha 2018 AIR 4787 mandate of Section 162 (1) Cr.P.C., declaring that statement under Section 161 Cr.P.C., has no evidentiary value is not relevant in view of Section 162 (2) Cr.P.C., which carves out an exception making such statement admissible falling under Section 32(1) of the Evidence Act. Reliance has been placed upon paragraph 12 and 17 of the aforesaid judgment in support of his contentions which are as follows:

12. It is relevant to refer to judgment of this Court in Najjam Faraghi @ Nijjam Faruqui Vs. State of West Bengal, (1998) 2 SCC 45. In the above case, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985. She lived for about a month and died on 31.07.1985. This Court referring to Section 32(1) held that mere fact that victim died long after making the dying declaration, the statement does not looses its value. In Para 9, following has been held:-

"9. There is no merit in the contention that the appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention over- looks the express provision in Section 32 of the Evidence Act. The second paragraph of sub- section (1) reads as follows:

"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the na- ture of the proceeding in which the cause of his death comes into ques- tion." No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in false-hood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the con- tents of the statements, the court can cer- tainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable."

17. The trial court after appreciation of evidence recorded the findings that deceased had acid injuries as well as bomb blast injuries. In the acid attack, he has lost his eye-sight and also lost his right foot. The trial court has rightly held that statement of deceased made on 05.12.1990 is admissible under Section 32 because it is regarding his cause of death and how he was injured. In para 8 of the judgment, trial court has recorded as follows:-

"8. From the medical report it is clear that the deceased was having acid injury and bomb blasting injury and during the treatment he died in the hospital. Now it is to be seen who has caused those acid and bomb blast injuries on the person of the deceased. There is no eye witness to the occurrence. The deceased had given information to the P.W.1 and also to the I.O. P.W.1 says that he learnt from the deceased that accused assaulted him and threw acid on his face, and other parts of his body and he reported the matter to the police, after knowing the fact from the deceased, vide Ext. 12. It is also clear from the evidence of P.W.3 that he carried the deceased to the hospital, who had sustained injuries. The statement of the deceased to P.W.1 is admissible under 32 of the Evidence Act. Because, it gives regarding his cause of death and how he was injured."

7. Learned AGA has also filed a counter-affidavit and opposed the submissions made by the learned counsel for applicant.

8. After hearing the rival contentions this Court finds that from the statement of the doctor, P.W.-4, recorded before trial court only one gun shot injury was found on the person of the deceased when there is allegation against the applicant and two co-accused, namely, Asharam and Ashok Kumar, of causing three gun shot injuries to the deceased. There is no dispute regarding the law laid down by the Apex Cout in the case of Pradeep @ Ranjeet Bisoi( supra) since the counsel for applicant has admitted that even if the allegations made in the statement of the deceased under Section 161 Cr.P.C., is deemed to be dying declaration of deceased, even then the offence alleged against the applicant of causing gun shot injury to the deceased, is not clearly made out. The applicant is languishing in jail since 07.08.2020. Not a single prosecution witness has been examined till date.

9. Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant, keeping in view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime 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 with the following conditions that :-

(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.

10. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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

12. The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year. In case record of the trial court is send of criminal Criminal Appeal Nos. 4847 of 2018 and 4850 of 2018.

13. Registrar(Compliance) is directed to communicate this order to the concerned court below within ten days.

Order Date :- 5.10.2023

Abhishek