Vicky Gupta vs State Of U.P Thru. Prin. Secy. Home ...
2023 Latest Caselaw 26076 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:61748 
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 224 of 2022
 

 
Appellant :- Vicky Gupta
 
Respondent :- State Of U.P Thru. Prin. Secy. Home And Another
 
Counsel for Appellant :- Roshan Babu Gupta,Pramod Kumar Pandey,Praveen Chandra,Sanjay Kumar Verma,Vaibhav Shukla
 
Counsel for Respondent :- G.A.,Afzal Hasan
 

 
Hon'ble Shamim Ahmed,J.

Appellant has filed rejoinder affidavit, which is taken on record.

Heard Sri Pramod Kumar Pandey, learned counsel for the appellant as well as learned A.G.A. for the State and Sri Afzal Hasan, learned counsel for the respondent No. 2, and perused the entire record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 28.10.2021 passed by the learned Special Judge, S.C./S.T. Act, Hardoi, in Bail Application No. 2809 of 2021, Case Crime No. 498 of 2020 under Sections 328/302 I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station Kotwali Dehat, District Hardoi, whereby the bail application of the appellant has been rejected.

Learned counsel for the appellant submits that the appellant is innocent and he has falsely been implicated in the present case. The entire story, as developed in the first information report, is false and fabricated. It is true that the appellant used to take e-rickshaw on rent from the deceased, who is owner of the said e-rickshaw, but he used to pay regular rent and there was no dispute between them in respect of rent. The allegation that the appellant defaulted in paying the rent, is false and fabricated. Before filing of the present first information report, no such type of complaint was ever made by the deceased or by the complainant, who is wife of the deceased. The dead-body of the deceased was found in a temple and it was also not in dispute that the deceased used to take excess liquor. This fact has been confirmed by many of the nearby persons, who lived in the locality where the deceased lived.

Learned counsel for the appellant further submits that when the dead-body of the deceased was recovered, and inquest-proceedings were conducted, no injury was found on his person and after the postmortem report the cause of death could not be ascertained, hence viscera was preserved and was sent for clinical observation and thereafter the viscera report was also obtained and as per viscera-report dated 12.08.2020 Organophosphorus Insecticide poison was found in the body of the deceased. Learned counsel for the appellant also submits that it was not possible to give the said insecticide forcefully or by mixing in the alcohol or water, as it is insoluble in the water, and as it gives a tainted smell, so the allegation that the appellant has given the said poison to the deceased is also false.

Learned counsel for the appellant further submits that the case is purely based on circumstantial evidence, as nobody has seen the appellant committing the alleged crime or giving the alleged poison to the deceased, nor there was any independent eye-witness of the alleged incident, who has seen the appellant committing the alleged crime. Only some of the villagers has seen that the appellant was accompanying the deceased from his house, but at the place of incident nobody has seen him with the deceased. He submits that the chain of link is totally missing to involve the appellant in the present crime. In support of his arguments, the counsel has placed reliance on a judgment of Hon'ble the Supreme Court in the case ofSharad Birdhichand Sarda Vs. State of Maharshtra : 1984 Cri. L.J. 178 and submits that as the chain is totally broken and the prosecution also fails to connect the chain and the involvement of appellant in the present case, thus, the appellant is entitled to get relief by this Court and his case be considered sympathetically and the present appeal be allowed by this Court and the appellant be enlarged on bail.

Several other submissions have also been brought forth before this Court regarding illegality and infirmity of the prosecution case and it has also been highlighted before this Court that the appellant is in detention since 2.6.2021 and he has already undergone substantial period of detention. In support of his arguments, he has placed reliance on a judgment of Hon'ble the Apex Court in the case of Kamal v. State of Haryana and also placed reliance on a judgment of the Supreme Court in the case of Takht Singh v. State of Madhya Pradhesh,2001 (10) SCC 463, (paragraph No. 2), and submits that the ratio of law, applicable by Hon'ble the Supreme Court in the the aforesaid judgments is also applicable in the case of present appellant, as he has already undergone substantial period of detention and it has further been submitted that as there is heavy pendency of criminal cases before the Trial Court, there are blinking chances that in near future trial of the present case will be concluded, thus his case may be considered sympathetically.

Sri Afzal Hussain, learned counsel for the opposite party no. 2 as well as the learned A.G.A. opposed the prayer for bail and submited that as per the version of the first information report the involvement of the appellant in the present case is very much clear, but they have not disputed the fact that nobody has seen the appellant committing the alleged crime nor any witness has named the appellant that he was present at the time of the alleged incident, rather they have submitted that as prima facie case is made out against the appellant, the present appeal be rejected, as the appellant is not entitled to any relief.

In pursuance of the arguments as advanced by the learned counsel for the parties and after perusal of record this Court finds thatthe appellant is in detention since 2.6.2021 and he has already undergone substantial period of detention. Before filing of the present first information report, no such type of complaint was ever made by the deceased or by the complainant, who is wife of the deceased. The dead-body of the deceased was found in a temple and it was also not in dispute that the deceased used to take excess liquor. This fact has been confirmed by many of the nearby persons, who lived in the locality where the deceased lived. The case is based on circumstantial evidence, as nobody has seen the appellant committing the alleged crime or giving the alleged poison to the deceased, nor there was any independent eye-witness of the alleged incident, who has seen the appellant committing the alleged crime. Only some of the villagers has seen that the appellant was accompanying the deceased from his house, but at the place of incident nobody has seen him with the deceased. The ratio of law, applicable by Hon'ble the Supreme Court in the cases of Sharad Birdhichand Sarda (supra), Kamal v. State of Haryana (supra), Takht Singh (supra), and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by Hon'ble the Apex Court in the case of Dataram Singh v. State of U.P. & anr., (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the Court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 28.10.2021 passed by learnedSpecial Judge, S.C./S.T. Act, Hardoi, in Bail Application No. 2809 of 2021, Case Crime No. 498 of 2020 under Sections 328/302 I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station Kotwali Dehat, District Hardoi, is hereby set aside and reversed.

Let the appellant, Vicky Gupta be released on bail in the Case Crime No. 498 of 2020 under Sections 328/302 I.P.C. and Section 3(2)(v) of S.C./S.T. Act, Police Station Kotwali Dehat, District Hardoi, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails 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.

(vii) The appellant shall remain present, 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 appellant 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.

The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

(Shamim Ahmed, J.)

Order Date :- 25.9.2023

A.Nigam