Surya Bhan Chauhan vs State Of U.P.
2023 Latest Caselaw 26074 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:186213
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35291 of 2023
 

 
Applicant :- Surya Bhan Chauhan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sunil Kumar Tiwari,Arun Kumar
 
Counsel for Opposite Party :- G.A.,Renu Sharma,Vivek Yadav
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vinay Kumar Singh, Advocate, holding brief of Mr. Arun Kumar, the learned counsel for applicant, the learned A.G.A. for State and Miss Renu Sharma, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Surya Bhan Chauhan, seeking his enlargement on bail in Case Crime No. 101 of 2023, under Section 302 IPC, Police Station-Turk Patti, District-Kushi Nagar during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 19.03.2022, a prompt FIR dated 19.03.2023 was lodged by first informant-Smt. Krishna (mother of the prosecutrix) and was registered as Case Crime No. 101 of 2023, under Section 302 IPC, Police Station-Turk Patti, District-Kushi Nagar. In the aforesaid FIR, applicant-Surya Bhan Chauhan has been nominated as solitary named accused.

5. The gravamen of the allegations made in the FIR to the effect that named accused assaulted the father of the first informant namely Ram Surat Chauhan on his head on account of which, he sustained various injuries on his head.

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. Thereafter, the inquest (Panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was categorized as homicidal and the cause of death of the deceased was opined as ante-mortem head injury. Subsequent to above, the post mortem of the body of deceased was conducted. The Autopsy Surgeon who conducted autopsy of the body of deceased, found following ante-mortem injuries on the body of deceased:-

"1. 7 x 4 cm lacerated wound, right temporal region deep up to brain 5 cm right ear underlying multishell bone.

2. Contused swelling 28 x 22 cm including whole head with underlying multiple bone in small piece.

3. Abraded contusion 5 x 5 cm around and including right eye.

4. Contused swelling 6 x 5 cm over nose with underlying bone."

In the opinion of the Autopsy Surgeon, the cause of death of deceased is hemorrhage and shock as a result of ante-mortem injury.

7. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. The complicity of the applicant in the crime in question stood corroborated by the statements of the 2 of the witnesses namely - Yogendra Chauhan and Prince Gupta. Accordingly, applicant was arrested on 19.03.2023. Thereafter, on the pointing of the applicant, the weapon of assault i.e. Danda was recovered on 19.03.2023. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 15.05.2023 whereby applicant has been charge sheeted under Section 302 IPC.

8. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. It is then contended that complicity of an accused in a case based on 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 (Paragraph 152). However, up to this stage, none of the parameters laid down by the Apex Court in aforementioned judgment to infer the guilt of an accused in a case based upon circumstantial evidence are satisfied against applicant. The complicity of the applicant is said to be established in the crime in question firstly as per the nomination made in the FIR and secondly as per the statements of the two witnesses examined under Section 161 Cr.P.C. namely - Yogendra Chauhan and Prince Gupta and thirdly the recovery of Danda on the pointing of applicant. However, upon perusal of the statements of aforesaid witnesses, it is apparent that the said witnesses are not an eye witness of the occurrence. Recovery so made from the applicant is liable to be ignored. There is no independent witness of the recovery. As such, the recovery is false and implanted. Moreover, the injury sustained by the deceased could not have been caused by the weapon so recovered on the pointing of the applicant. Up to this stage, neither any strong motive has emerged against the applicant to commit the crime in question nor any animus has emerged against the applicant for committing the crime in question. It is thus urged that up to this stage, no such incriminating material has emerged on the record of aforementioned case crime number on the basis of which, the complicity of applicant can be said to be conclusively established in the crime in question.

9. 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 19.03.2023. As such, he has undergone more than 6 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 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.

10. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have 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, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

11. 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 based on circumstantial evidence has to be drawn as per the parameters laid down by the Apex Court in the case of Sharad Birdhichand Sarda (Supra), none of the parameters laid down by the Apex Court in aforementioned judgment are satisfied against applicant up to this stage, there is no strong motive with the applicant to commit the crime in question nor any animus has emerged against applicant to commit the crime in question, the complicity of the applicant in the crime in question is said to be established as per the nomination of the applicant in the FIR and the statements of the two witnesses examined under Section 161 Cr.P.C. namely Yogendra Chauhan and Prince Gupta, however, the witnesses so examined are not eye witnesses of the occurrence, their statement is based upon heresay statement, the recovery of the alleged weapon of assault from the applicant is prima-facie false and implanted, there is no independent witness of recovery, therefore, the same is unworthy of reliance, the injury sustained by the deceased could not have been caused by the weapon alleged to have been recovered on the pointing of applicant, the clean antecedents of the 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. 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 to the present application for bail but without making any comments on the merits of the case, applicant has made out a case for bail.

12. Accordingly, the bail application is allowed.

13. Let the applicant-Surya Bhan Chauhan, 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.

14. 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 :- 25.9.2023

Vinay