Rammu @ Ram Babu Koal vs State Of U.P.
2023 Latest Caselaw 25096 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:179909
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40466 of 2023
 

 
Applicant :- Rammu @ Ram Babu Koal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vinay Kumar Pal
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vinay Kumar Pal, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant-Rammu @ Ram Babu Koal, seeking his enlargement on bail in Case Crime No. 02 of 2013, under Sections 147, 148, 149, 302 IPC, Police Station-Karvi, District-Chitrakoot during the pendency of trial i.e. Sessions Trial No. 434 of 2022 (State Vs. Rammu @ Ram Babu Koal) now pending in the Court of Additional Sessions Judge, Court No.-3, Chitrakoot.

4. Record shows that in respect of an incident, which is alleged to have occurred on 02.01.2013, a promt FIR dated 02.01.2013 was lodged by first informant-Ramlal Patel and was registered as Case Crime No. 02 of 2013, under Section 302 IPC, Police Station-Karvi, District-Chitrakoot. In the aforesaid FIR, an unknown person has been arraigned as solitary accused.

5. The gravamen of the allegations made in the FIR to the effect that Jagatpal Singh left his home on 01.01.2013 at around 12:00 PM along with his friend Dheerendra @ Rinku. However, they did not return even till late at night. In the morning of 02.01.2013, information was received that two dead bodies are lying in the Karariya Jungle. Upon receipt of aforesaid information, the first information along with others went to aforesaid place and discovered that his son and his friend have been put to death by gun shot injury caused by some unknown persons.

6. 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 (Panchayatnama) of the body of deceased was conducted on 02.01.2013 itself. In the opinion of witnesses of inquest (Pancha witnesses), the nature of death of deceased was characterized as homicidal and cause of death of deceased was opined as gun shot injury. Subsequent to above, the post mortem of the body of deceased was conducted on the same day. The Autopsy Surgeon, who conducted autopsy of the body of deceased opined that the cause of death of deceased was hemorrhage and shock due to ante mortem fire arm injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased-Dheerendra @ Pintoo:-

"ANTE MORTEM INJURIES

(1) Firearm Injury No.1

(A) entry wound size 1 x 1 cm. x brain cavity deep on left temporal region of head, 3 cm. medial of Rt. Ear Pinna. Margin inverted, blackening present loss of tissue present. Seized hair present.

(B) Exit wound size 04 x 3 cm. x brain cavity deep present on rt. side of neck, 4 cm. lateral to lacerated Rt. Ear Pinna. Margin everted, soft tissue presented of loss of tissue present. Entry & exit wound is thigh.

(2) Entry wound size 1 x 1 cm. chest X abdominal cavity left side of chest, 23 cm. below margin inverted, bleeding present to size 2.5 cm. X 2.0 cm. abdominal cavity."

7. In the opinion of the Autopsy Surgeon, the cause of death of deceased Jagatpal was Hemorrhage and Shock due to ante-mortem fire arm injury. The Autopsy Surgeon, who conducted the autopsy of the body of deceased found following ante-mortem injuries on the body of deceased-Jagatpal:-

"ANTE MORTEM INJURIES

(1) Firearm injury entry wound size 1 x 1 cm. x chest cavity deep present on right side of chest, 19.5 cm. below the medial end of Rt. Clavicle. Margin inverted, blacking present loss of tissue present.

(2) Firearm injury exit wound size 4.5 cm. x 3.0 cm. x through & through entry wound present on back of left side of abdomen, 16 cm. below the interior angle of left scapula margin & inverted soft tissue protruded.

(3) Spleen, liver & left kind 4.0 cm. ruptured about 200 ml. blood placed abdominal lateral."

8. During course of investigation, Investigating Officer examined various witnesses including Umar Pal, Ranjit and Rampal under Section 161 Cr.P.C. The complicity of applicant in the crime in question emerged in the statement of aforesaid witnesses. Accordingly, the applicant was arrested. Ultimately, Investigating Officer on the basis of above and other material collected by him during course of investigation, came to the conclusion that complicity of present applicant and 4 other persons namely - Chunni Lal Patel @ Chunni, Babali Koal, Juggi Lal Patel and Swadesh Pate is established in the crime in question. He, accordingly, submitted the charge sheet dated 31.07.2013 against aforesaid accused.

9. Learned counsel for applicant submits that applicant is innocent. Applicant is not named in the FIR but a charge sheeted accused yet he is liable to be enlarged on bail. According to the learned counsel for applicant, present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. It is next contended that neither there is any recovery from the applicant nor there is any evidence of last seen against applicant. The complicity of applicant has emerged in the crime in question as per the statements of three of the witnesses examined under Section 161 Cr.P.C. namely Umar Pal, Ranjit and Rampal. However, their statements are based upon heresey evidence inasmcuh as, they are not eye witnesses of the occurrence. According to the learned counsel for applicant, the complicity of an accused based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Para 152). However, up to this stage, none of the parameters laid down by Apex Court in aforementioned judgment are satisfied against applicant. No strong motive has emerged against applicant to commit the crime in question nor the Investigating Officer has discovered any animus against applicant to commit the crime in question.

10. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 18.07.2022. As such, he has undergone more than 1 year and approximately 2 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. 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.

11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Learned A.G.A. further submits that it is true that there is no recovery from the applicant nor there is any evidence of last seen yet the applicant is not liable to be enlarged on bail. The charge sheet was submitted against applicant on 31.07.2013. However, the fact remain that though the charge sheet was submitted against applicant on 31.07.2013. The applicant has avoided his arrest from 31.07.2013 to 13.07.2022. As such, no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

12. In rejoinder, the learned counsel for applicant submits that it is apparent from the record that though the charge sheet was submitted against applicant on 31.07.2013, the resultant Sessions Trial came to be registered only in the year, 2022. Applicant was also arrested in the year, 2022. Even in case, applicant was absconding from the proceedings, the same did not result in delay in the conclusion of trial. He, therefore, submits that applicant cannot be denied bail simply on that ground.

13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that present case is a case based upon circumstantial evidence, therefore, there is no eye witness of the occurrence, there is no evidence of last seen against applicant, no recovery has been made on the pointing of applicant or from the persons of applicant, the only evidence that has emerged against applicant is in the statement of 3 witnesses namely Umar Pal, Ranjit and Rampal examined under Section 161 Cr.P.C., they are not eye witness of the occurrence, their statement is based upon heresey evidence, present case is a case of circumstantial evidence, therefore, an inference of guilt can be drawn only in accordance with the parameters laid down by Apex Court in Sharad Birdhichand Sarda (Supra), however, the learned A.G.A. could not establish from the record that all the parameters laid down in aforementioned judgment are satisfied against applicant up to this stage, even though, the charge sheet was submitted on 31.07.2013 but the applicant was arrested on 18.07.2022, however, on account of absconding of applicant from the criminal proceedings, no prejudice can be said to be caused to the prosecution as the resultant Sessions Trial came to be registered only in the year, 2022, the clean antecedents of applicant, the period of incarceration undergone, 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 from the record any such circumstance necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.

14. Accordingly, the bail application is allowed.

15. Let the applicant-Rammu @ Ram Babu Koal, be released on bail in 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.

16. 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 :- 18.9.2023

Vinay