Madhvesh vs State Of U.P.
2023 Latest Caselaw 24921 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:179034
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39256 of 2023
 

 
Applicant :- Madhvesh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mayank Yadav,Vivek Kumar Singh
 
Counsel for Opposite Party :- G.A.,Ardhendu Shekhar Sharma,Ram Babu Sharma
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Mayank Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Ardhendu Shekhar Sharma, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Madhvesh, seeking his enlargement on bail in Case Crime No. 77 of 2023, under Sections 302, 120B, 506, 34 IPC and Sections 25/27 Arms Act, Police Station-Kaila Devi, District-Sambhal during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 23.04.2023, a prompt FIR dated 23.04.2023 was lodged by first informant-Raghunandan (father of the deceased) and was registered as Case Crime No. 77 of 2023, under Sections 302, 506 IPC, Police Station-Kaila Devi, District-Sambhal . In the aforesaid FIR, 3 persons namely - (1) Dhalendra, (2) Mahendra and (3) Bhupendra have been nominated as named accused.

6. The gravamen of the allegations made in the FIR to the effect that named accused conspired together and have caused the death of the son of first informant.

7. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The inquest (Panchyatnama) of the deceased was conducted on 24.04.2023. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was characterized as homicidal. Thereafter post mortem of the body of deceased was conducted on 24.04.2023. The Autopsy Surgeon, who conducted the autopsy of the body of deceased, found following anti-mortem injuries on the body of deceased;-

"Fire Arm Injury

(1) Entry wound gun shot injury. Present on Rt. side of skull size 2 x 2 cm just front of Rt. ear. Blackening & Tattooing present around entry wound. Margins are inverted & irregular.

(2) Exit wound gun shot injury present on Lt. side of skull temporal region 1 x 1 cm & 2 x 1 cm, 5 cm above from Lt. ear. Margins irregular & evested.

(3) Whole bones of skull are fractured, Brain lacerated & Haematoma."

8. In the opinion of Autopsy Surgeon, the cause of death of deceased was opined as shock and hemorrhage as a result of gun shot fire arm injury. During course of investigation, Investigating Office examined following witnesses under Section 161 Cr.P.C.:-

(i). Raghunandan (First Informant)

(ii). Ram Rahees (Father of the charge sheeted co-accused Preeti)

(iii). Ranveer (Brother of the charge sheeted co-accused Preeti)

(iv). Smt. Rambeti (Mother of the charge sheeted co-accused Preeti)

9. Ram Beti (mother of Preeti), in her statement under Section 161 Cr.P.C., has implicated the applicant in the crime in question that applicant in connivance with his son-in-law Dhalendra have caused the crime in question. Another witness namely Ranveer in his statement under Section 161 Cr.P.C. has stated that the deceased was last seen in the company of applicant and others. The two other witnesses namely Rahees and Ranveer have not disclosed anything adverse to the applicant.

10. On the basis of above, the applicant came to be arrested on 15.05.2023. On his pointing out a country made gun of .315 bore was recovered. Subsequently, named and charge sheeted co-accused Dhalendra made his confessional statement before the Investigating Officer. In his confessional statement, he has categorically spelt out the manner of occurrence. The role of catching hold has been assigned two charge sheeted accused Pappu and applicant-Madhvesh whereas the role of causing fatal gun shot injury upon the deceased has been assigned to himself.

11. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of 4 persons namely (1) Madhvesh (applicant herein), (2) Pappu, (3) Dhalendra and (4) Preeti is established in the crime in question. Accordingly, he submitted the charge sheet dated 09.06.2023 against aforementioned accused.

12. Learned counsel for applicant contends that applicant is innocent. Applicant is not named in the FIR. However, the applicant is a charge sheeted accused. It is then contended that the recovery of country made gun on the pointing of applicant is false inasmuch as, there is no independent witness of recovery. Secondly, the said recovery has been made on 26.05.2023 i.e. after expiry of a period of more than 1 month from the date of occurrence and from an open place. There is no FSL report to show that the said weapon was used in the commission of crime. The statement of Ram Beti (mother of Preeti), in whose statement, allegations have been made against the applicant and her son-in-law Dhalendra are not worty of reliance. As present case is a case of circumstantial evidence and Ram Beti is not an eye witness of the occurrence, therefore, her statement is based upon heresay.

13. It is lastly submitted that as per the confessional statement of charge sheeted accused Dhalendra, the role of catching hold has been assigned to two charge sheeted accused Pappu and applicant-Madhvesh whereas the role of causing fatal gun shot injury upon the deceased has been assigned to himself i.e. Dhalendra. On the above premise, he, therefore, submits that case of present applicant is clearly distinguishable from charge sheeted co-accused Dhalendra.

14. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. The complicity of an accused in a case based upon circumstantial evidence has to be inferred in the light of parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Paragraph 152), wherein Court has laid down the parameters which are required to be established in inferring the guilt of an accused in a case based upon circumstantial evidence. However, up to this stage, no such material has emerged on the record on the basis of which, it can be conclusively concluded that all the parameters laid down in aforementioned judgment are satisfied against applicant.

15. Applicant has criminal history to this credit but the same has been explained. Applicant is in jail since 15.05.2023. As such, he has undergone more than 4 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

16. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant and other charge sheeted co-accused have been charge sheeted under Section 34 IPC. As such, there is a common intention with the charge sheeted accused, to commit the crime in question. In view of above the criminality committed by the charge sheeted accused can neither be separated nor segregated. As such, no exception can be carved out in the case of present applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

17. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, the complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of parameters laid down by Apex Court in Sharad Birdhichand Sarda (Supra), prima-faice, all the parameters laid down by the Apex Court in aforementioned judgment are not satisfied against applicant up to this stage, as per the confessional statement of charge sheeted accused Dhalendra, the role of catching hold is assigned to two charge sheeted accused Pappu and applicant-Madhvesh whereas the role of causing fatal gun shot injury upon the deceased is assigned to Dhalendra himself, as such, the case of present applicant is clearly distinguishable from the charge sheeted co-accused Dhalendra, the confessional statement of co-accused Dhalendra clearly tallies with the narration of the occurrence and the recoveries made by the Investigating Officer during course of investigation, the recovery made on the pointing of applicant can not be relied upon, as the said recovery was made after expiry of a period of 1 month from an open place, moreover, there is no independent witness of recovery, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the explained criminal history of applicant, the period of incarceration undergone, but without making any comments on the merits of the case, applicant has made out a case for bail.

18. Accordingly, the bail application is allowed. However, it is provided that no parity shall be claimed by charge sheeted co-accused Dhalendra from the order.

19. Let the applicant-Madhvesh, be released on bail in the aforesaid case crime number 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 which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

20. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 15.9.2023

Vinay