Dhaniram vs State Of U.P. And Anr.
2024 Latest Caselaw 16292 ALL

Allahabad High Court

Dhaniram vs State Of U.P. And Anr. on 9 May, 2024

Author: Saurabh Lavania

Bench: Saurabh Lavania

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:35973
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 1582 of 2021
 
Appellant :- Dhaniram
 
Respondent :- State Of U.P. And Anr.
 
Counsel for Appellant :- Atul Verma,Hari Krishna Verma
 
Counsel for Respondent :- G.A.,Arjun Singh Somvanshi
 

 
Hon'ble Saurabh Lavania,J.
 

1. Heard learned counsel for the appellant, Shri Awadesh Kumar, Addocate holding brief of Shri Arjun Singh Somvanshi, learned counsel for the informant and Shri Vipul Kishore, learned A.G.A. for the State-respondent.

2. The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 22.06.2020 passed by Special Judge, SC/ST Act, Hardoi in Bail Application No. 887 of 2020 arising out of Case Crime No. 157 of 2020, under Sections 302, 504, 34 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Kachauna, District - Hardoi.

3. Pressing the present appeal for the relief sought including the relief related to the order, under appeal, dated 15.07.2023, learned counsel for the appellant stated that the story of the prosecution in brief is that the appellant caused fire arm injury to the deceased and on account of injury so sustained, the deceased succumbed to the injury.

4. In continuation, he further submitted that considering the allegations levelled against the appellant and other co-accused namelyPradeep @ Pintu and Arvind Tiwari, all were apprehended and sent to jail on 11.03.2020 and since then, the appellant is in judicial custody.

5. He further submitted that the co-accused Pradeep @ Pintu and Arvind Tiwari have already been released on bail by this Court vide order dated 19.07.2021 and 16.01.2023 passed in Criminal Appeal No. 793 of 2020 and Criminal Appeal No. 1545 of 2021 respectively. This Court enlarged the co-accused on bail after taking note of the role attributed by the prosecution to the appellant and other co-accused.

6. He further submitted that the Jayaram (informant) and other witnesses of the prosecution namely Rekha W/o the deceased/Deepak and Shivram S/o Bhailu(father-in-law of the deceased), Rinku S/o Jayram (brother of the deceased) and Sandeep Kumar S/o Jayram (brother of the deceased) and in fact are not the eye-witnesses of the story of the prosecution.

7. To clarify the aforesaid, he stated that the incident according to the case of the prosecution occurred on 10.03.2020 at 10 p.m. and thereafter after delay of six and half hours, the FIR was lodged and thereafter statements of Jayram was recorded on 11.03.2020 and the statements of Shivram and Rekha were recorded on 29.04.2020 and after delay of about two months, statements of Rinku, Sandeep and Baltor were recorded on 11.05.2020, 12.05.2020 and 15.05.2020, respectively and accordingly, if earlier witnesses namely Jayram, Shivram and Rekha were the eye-witnesses, thought they were not, there was no occasion for the prosecution to record the statement(s) of witnesses on 11.05.2023, 12.05.2023 and 15.05.2023 i.e. after about two months from the date of the incident.

8. It was also stated that delay in recording the statements of witnesses available creates a doubt on the story of the prosecution as also on the credibility of the witnesses.

9. He further submitted that the aforesaid fact indicates that all the witnesses of the prosecution are in fact not the eye-witnesses.

10. He also stated that the appellant at relevant point of time was BDC member as appears from the statement of Baltor recorded by investigating officer and on account of the same as also the political enmity, the appellant has been implicated.

11. He also stated that before the trial Court, all the witnesses of the fact have been examined and now in this view of the matter, there is no possibility of influencing the the witnesses of the fact and as other witnesses are formal witnesses and the appellant is not in possession to influence these witnesses.

12. It is further stated that the in the aforesaid background of the case as also taking note of the statements of the witnesses of the fact on record wherein several discrepancies exist as also that about four years have been passed the trial has not been concluded and further that the trial is not proceeding in terms of Section 309 Cr.P.C. and eighteen witnesses are yet to be examined and also taking note of the principle that the delay in recording the statement of the witnesses creates doubt on the story of the prosecution as observed by Hon'ble Supreme Court in the cases of Shahid Khan Vs. State of Rajasthan reported in (2016) 4 SCC 96, Sudershan Kumar Vs. State of Himachal Pradesh reported in (2014) 15 SCC 666, Harbeer Singh Vs. Sheeshpal and Others reported in (2016) 16 SCC 418 and Balwan Singh Vs. State of Chhattisgarh reported in (2019) 7 SCC 781, the indulgence of this Court is required in the matter. As such, appellant, who is in jail since 11.03.2020 and having criminal history as explained in para 36 of the affidavit, is entitled for bail and the impugned order is liable to be set aside and the appeal is liable to be allowed.

13. It is lastly stated that delay in conclusion of trial is also one of the grounds to enlarge the accused on bail. In regard to period of incarceration, learned counsel for the applicant has placed reliance on the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. K.A. Najeeb reported in AIR 2021 SCC 712 and Paras Ram Vishnoi. Vs. The Director General Bureau of Investigation, passed in Criminal Appeal No.693 of 2021 (Arising out of SLP (Crl.) 3610 of 2020), as per which, bail can be granted to those accused persons on the ground that there is no possibility to conclude the trial in near future and there is a long incarceration period of that accused. Relevant para-16 of the case of K.A. Najeeb (supra) is quoted below:-

"This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

14. In the case of Paras Ram Vishnoi (supra), the Hon'ble Apex Court has observed regarding point of incarceration period and delay in trial. The relevant part of the said judgment is quoted below:-

"On consideration of the matter, we are of the view that pending the trial we cannot keep a person in custody for an indefinite period of time and taking into consideration the period of custody and that the other accused are yet to lead defence evidence while the appellant has already stated he does not propose to lead any evidence, we are inclined to grant bail to the appellant on terms and conditions to the satisfaction of the trial court."

15. Learned A.G.A. vehemently opposed the prayer of the appellant, however, he could not dispute the above contentions made by the appellant's counsel.

16. Considered the arguments advanced by the learned counsel for the appellant-applicant, learned A.G.A., and perused the records.

17. Upon due consideration of above facts and circumstances particularly the delay in recording the statement of the witnesses of the fact namely Shivram, Rekha, Rinku, Sandeep, Baltor and in the light of observations made by Hon'ble Apex Court on this aspect of the case as also the observations made by Hon'ble Apex Court in the case of K.A. Najeeb (supra) and Paras Ram Vishnoi (supra) as also the period of incarceration of the appellant also that eighteen witnesses are yet to be examined before the trial Court also the criminal history of the appellant has been explained in para 36 of the affidavit as also there is no possibility of influencing the witnesses of the fact also keeping in view the fact that the trial of the case is not likely to be concluded in near future, this Court is of the view that the appeal has substance and it is accordingly, allowed.

18. Orderdated 22.06.2020 passed by Special Judge, SC/ST Act, Hardoi in Bail Application No. 887 of 2020 arising out of Case Crime No. 157 of 2020, under Sections 302, 504, 34 I.P.C. and Section 3(2)(v) of SC/ST Act, P.S. Kachauna, District - Hardoi is set aside.

19. Let appellant Dhaniram, be released on bail in the aforesaid case crime number on his furnishing personal bond of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

(i) The appellant will cooperate with the prosecution during trial.

(ii) The appellant will not tamper with the evidence during trial.

(iii) The appellant will not pressurize/intimidate the prosecution witness(es).

(iv) The appellant shall not commit an offence.

(v) 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.

(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel.

(vii) The appellant will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

20. In case of default of above conditions, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law

21. As this order relates to enlargement of the appellant on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

Order Date :- 9.5.2024

Mohit Singh/-