Allahabad High Court
Amarnath Ram vs State Of U.P. on 22 September, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:184600 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39363 of 2023 Applicant :- Amarnath Ram Opposite Party :- State of U.P. Counsel for Applicant :- Dhirendra Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Dhirendra Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Amarnth Ram seeking his enlargement on bail in Case Crime No.347 of 2023, under Sections 304, 323, 504, 506 IPC, police station Rasra, district Ballia, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 31.07.2023, a prompt FIR dated 31.07.2023 was lodged from the side of the applicant and was registered as Case Crime No.346 of 2023, under Sections 323, 504, 506 IPC, police station Rasra, district Ballia. In the aforesaid FIR, three persons, namely, Ram Chandra, Nigam Kumar and Arjun have been nominated as named accused.
As per the prosecution story as unfolded in the aforesaid FIR, in the occurrence which occurred on 31.07.2023, two persons, namely, Amarnath Ram and Pawan Kumar sustained injuries. The injury reports of the aforesaid injured are on record at page 75 and 77 of the paper book.
In respect of the same incident, another FIR dated 31.07.2023 was lodged by first informant, namely, Arjun Kumar i.e. accused in earlier FIR and was registered as Case Crime No.347 of 2023, under Sections 323, 504, 506 IPC, police station Rasra, district Ballia. In the aforesaid FIR, two persons, namely, Amit and Pawan have been nominated as named accused, whereas two un-known persons have also been arraigned as accused.
According to the prosecution story as unfolded in the aforesaid FIR i.e. Case Crime No.347 of 2023, three persons, namely, Ram Chandra, Nigam Kumar and Arjun Kumar are alleged to have sustained injuries. The medico legal reports of the inuured are on record at page 29, 31 and 33 of the paper book. Subsequently, one of the injured, namely, Ram Chandra succumbed to the injuries sustained by him on 01.08.2023. Consequently, the case was converted under Section 304 IPC.
Learned counsel for applicant contends that since the first information reports have been lodged from both the sides in respect of the occurrence dated 31.07.2023 therefore, the occurrence is admitted to the parties. Injuries have been sustained by persons from both sides. On the above premise, he then contended that the primary issue which is required to be decided is as to who is the aggressor. The said issue cannot be decided without evidence being led by the parties. Such a question can more appropriately be decided only during the course of trial. However, up to this stage, no such conclusive evidence has emerged on the record of aforementioned case crime number on the basis of which it can be decided as to who is the aggressor in the crime in question.
It is next contended that since the occurrence has occurred on account of grave and sudden provocation and not on account of any calculated mens-rea or pre-planned act of the applicant therefore, the present case is a case of grave and sudden provocation and is covered under the fourth exception to Section 300 IPC. As such, the offence complained of would not travel beyond Section 304 Part II IPC.
Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 02.08.2023. As such, he has undergone more than one and half months of incarceration. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of investigation. 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.
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that though it is true that the applicant is not named in the FIR but his complicity in the crime in question has surfaced as per the statement of the witnesses examined under Section 161 CrPC. Considering the nature and gravity of the offence and coupled with the fact that crime committed by the accused is joint and common therefore the same is incapable of being separated or segregated As such, no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the occurrence giving rise to the present criminal proceeding is admitted to the parties, inasmuch as, cross-first information reports have been lodged from both the sides, there are injured from both the sides, the present case is a case of grave and sudden provocation and the same is not the outcome of any calculated mens-rea or pre-planned act of the applicant and other co-accused, in view of above the case in hand is covered under the fourth exception to Section 300 IPC, thus the primary issue as to who is the aggressor can more appropriately be answered only during the course of trial, however upto this stage no such evidence has been discovered by the Investigating Officer on the basis of which it can be conclusively concluded as to who is the aggressor, as per the confessional statement of the applicant the author of fatal head injury sustained by the deceased is Pawan Kumar therefore irrespective of the fact that the Lathi (blood stained), which was used in the crime in question, was recovered on the pointing out of the applicant, however in spite of above the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, the clean antecedents of the applicant, the period of incarceration undergone, therefore irrespective of objection raised by the learned A.G.A. in opposition to the present application for bail but, without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Amarnath Ram, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.
(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 him 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.
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.
Rks.