Vinod Sharma vs State Of U.P.
2023 Latest Caselaw 25901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:184439
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35722 of 2023
 

 
Applicant :- Vinod Sharma
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Kumar Pandey
 
Counsel for Opposite Party :- G.A.,Mukesh Joshi
 

 
Hon'ble Rajeev Misra,J.

1. Supplementary affidavit filed by the learned counsel for applicant in Court today, is taken on record.

2. Heard Mr. Sunil Kumar Pandey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Manish Joshi, Advocate, holding brief of Mr. Mukesh Joshi, the learned counsel representing first informant.

3. Perused the record.

4. This application for bail has been filed by applicant-Vinod Sharma seeking his enlargement on bail in Case Crime No. 876 of 2022, under Section 304 IPC, Police Station-Civil Lines, District-Moradabad during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 18.09.2022, a belated FIR dated 07.10.2022 was lodged by first informant-Bhashkar Verma, (Son of the deceased) and was registered as Case Crime No. 876 of 2022, under Section 304 IPC, Police Station-Civil Lines, District-Moradabad. In the aforesaid FIR, 4 persons namely - (1) Smt. Rekha Devi, (2) Vyom Sharma, (3) Janhavi Prasad Sharma and (4) Mukteshwari have been nominated as named accused whereas two brothers of Smt. Rekha Devi have also been arraigned as accused.

5. It is apposite to mention here that prior to the lodging of above-mentioned FIR, the post mortem of the body of deceased namely Dinesh Verma was conducted. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and hemorrhage as a result of ante-mortem injuries. The Autopsy Surgeon who conducted the autopsy of the body of the deceased found following ante-mortem injuries on the body of deceased:-

"1. 2 Stiches wound present on Right of neck laterally i.e. 5 cm below from Right ear love and rest part of neck of laterally side bleeding is present.

2. Hyoid Bone intact.

3. Upper part of neck grater vessels cutting of Right side of neck.

4. Old Healed (scar) wound present on Right knee joint."

6. On the basis of above and other material collected by the Investigating Officer including the statements of witnesses examined up to that stage, he came to the conclusion that complicity of 2 of the named accused i.e. Rekha Devi and Janhavi Prasad Sharma is established in the crime in question. He, accordingly, submitted the charge sheet dated 31.01.2023 in respect of aforementioned accused, whereas the investigation in respect of other accused is said to be pending.

7. At the very outset, the learned counsel for applicant submits that 2 of the named accused i.e. Rekha Devi and Janhavi Prasad Sharma have already been enlarged on bail by this Court. Their bail orders are on record as Annexure-16 to the affidavit filed in support of the bail application. The details of the same are as under:-

(i). Criminal Misc. Bail Application No. 1938 of 2023 (Rekha Sharma Vs. State of U.P.) decided on 23.03.2023.

(ii). Criminal Misc. Bail Application No. 59914 of 2022 (Janhavi Prasad Sharma Vs. State of U.P.) decided on 24.03.2023.

8. It is thus contended that subsequent to above, Investigating Officer arrested the present applicant on 11.07.2023 and thereafter, the charge sheet has been submitted against applicant on 14.07.2023.

9. On the above premise, it is thus contended that though applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. The case of present applicant is similar and identical to aforementioned named/charge sheeted co-accused who have already been enlarged on bail. Up to this stage, there is nothing on record to distinguish the case of present applicant from aforementioned named/charge sheeted co-accused who have already been enlarged on bail so as to deny bail to applicant. It is thus urged that in view of above and for the facts and reasons recorded in the bail orders of co-accused, present applicant is also liable to be enlarged on bail on the ground of parity.

10. According to the learned counsel for applicant, general role has been assigned to all the named accused. The author of the injuries sustained by the deceased on his neck has not been specified either in the first information report nor the same has been identified in the statement of the witnesses examined under Section 161 Cr.P.C. It is thus contended that in view of above, the applicant is liable to be enlarged on bail.

11. 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. The complicity of accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by the 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.

12. Applicant has criminal history of 2 cases which have been sufficiently explained in the supplementary affidavit filed by the learned counsel for applicant in Court today. Referring to the three Judges Bench judgment in Brijmani Devi Vs. Pappu Kumar and Anohter, (2022) 4 SCC 497, he submits that irrespective of criminal history of applicant, he is liable to be enlarged on bail. The applicant is in jail since 11.07.2023. As such, he has undergone more than 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 incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he, therefore, submits 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.

13. 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 named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

14. 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 accused coupled with the fact that present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, the inference of guilt of an accused in a case based upon circumstantial evidence has to be inferred in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (Supra), up to this stage, none of the parameters laid down by Apex Court in aforementioned judgment are satisfied against applicant, no strong motive or animus to commit the crime in question has emerged against applicant either, there is no recovery from the applicant nor there is evidence of last seen against applicant, the applicant is in jail since 11.07.2023, as such, he has undergone more than 2 months of incarceration, the explained criminal history of the applicant, therefore, the rigours of law laid down by Apex Court in the case of Neeru Yadav Vs. State of U.P. (2014) 16 SCC 508 are not attracted, the judgment of the Supreme Court in Brijmani Devi (Supra), 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. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition of the present applicant, but without making any comments on the merits of the case, applicant has made out a case for bail.

15. Accordingly, the bail application is allowed.

16. Let the applicant-Vinod Sharma, 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.

17. 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 :- 22.9.2023

Vinay