Allahabad High Court
Suraj vs State Of U.P. on 9 May, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 1. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42958 of 2021 Applicant :- Suraj Opposite Party :- State of U.P. Counsel for Applicant :- Siya Ram Sahu Counsel for Opposite Party :- G.A. 2. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 54873 of 2021 Applicant :- Dharmendra And Another Opposite Party :- State of U.P. Counsel for Applicant :- Ram Krishna Chaurasia,Bhavya Sahai,Sr. Advocate Counsel for Opposite Party :- G.A. 3. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39945 of 2021 Applicant :- Rohit And Another Opposite Party :- State of U.P. Counsel for Applicant :- Siya Ram Sahu Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Siya Ram Sahu, the learned counsel for applicants- Suraj, Rohit along with Kamta, Mr. Ram Krishna Chaurasia, the learned counsel for applicants- Dharmendra along with Dharamveer and the learned A.G.A. for State.
2. These applications for bail have been filed by applicants- Suraj, Rohit, Kamta, Dharmendra and Dharamveer seeking their enlargement on bail in Case Crime No.931 of 2020, under sections 147, 148, 302, 504, 506, 34 I.P.C., Police Station- Kotwali City, District- Banda, during the pendency of the trial.
3. Perused the record.
4. Criminal Misc. Bail Application No. 42958 of 2021 (Suraj Vs. State of U.P.) came up for orders on 04.02.2022 and this Court passed following order:-
"Case called out in revised list.
Mr. Siya Ram Sahu, learned counsel for applicant and learned A.G.A. for State are connected virtually.
Vide order dated 12.11.2021, learned A.G.A. was granted three weeks' time to file counter affidavit.
Learned A.G.A. submits that he has filed counter affidavit on 07.12.2021.
Learned counsel for applicant may obtain copy of counter affidavit from the office of learned Government Advocate. He may also file a rejoinder affidavit within two weeks thereafter.
Learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court.
Criminal Misc. Bail Application No.39945 of 2021 (Rohit and Another Vs. State of U.P.) Criminal Misc. Bail Application No.54873 of 2021 (Dharmendra and Another Vs. State of U.P.) In view of above, connect aforementioned criminal misc. bail applications along with this bail application.
Matter shall re-appear as fresh on 22.02.2022 along with connected matters.
Order Date :- 4.2.2022"
5. Pursuant to aforesaid order dated 04.02.2022, above-mentioned bail applications stood connected and have therefore been listed together. Since all the bail applications arise out of the same case crime number, they have been heard together and are now been disposed of finally by a common order.
6. Record shows that in respect of an incident, which is alleged to have occurred on 20.11.2020, a delayed F.I.R. dated 21.11.2020 was lodged by first informant- Saurabh Kumar and was registered as Case Crime No.931 of 2020, under sections 147, 148, 302, 504, 506, 34 I.P.C., Police Station- Kotwali City, District- Banda. In the aforesaid F.I.R., 15 persons namely, Somchand, Dharmveer, Dharmendra, Devraj, Rajjo, Shivpoojan, Dharmali, Suresh @ Babloo, Raj @ Gopi, Shakuntla, Suraj, Kamta, Rohit, Shivwantee, Machhala have been nominated as named accused, whereas two unknown persons have also been arraigned as accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused with a common intention, who are neigbours of first informant, assaulted Ramawati (mother of the first informant), Nisha Kumari (sister of the first informant) and Abhijeet (son of the first informant) and Dileep on account of which they have sustained injuries. As a result of the injuries sustained by Ramawati, Nisha Kumari and Abhijeet, they ultimately succumbed to the injuries sustained by them.
8. After registration of aforementioned F.I.R., Investigation Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The inquest (panchayatnama) of the bodies of the deceased was conducted on 21.12.2020 differently. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of all the three deceased was characterized as homicidal.
9. Thereafter, the post-mortem of the body of deceased Ramawati (Rama Devi) was conducted on 21.12.2020. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and hemorrhage as a result of ante-mortem head injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of aforesaid deceased.
1. Chop wound about 7.0cm x 1.5cm brain deep at mid point of frontal bone of scalp.
2. Chop wound about 5.0cm x 0.5cm bone deep at Lt. Parietal bone of scalp on cut section.
Mandela Maxilla Frontal bone Parietal bone Nasal bone
10. Similarly, the post-mortem of the body of deceased Nisha Kumari was conducted on the same day. In the opinion of Autopsy Surgeon, the cause of death of aforesaid deceased was shock and hemorrhage as a result of ante-mortem head injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of aforesaid deceased.
1. Chop wound about 7.0cm x 1.5cm brain deep at mid point of frontal bone of scalp.
2. Chop wound about 5.0cm x 0.5cm bone deep at Lt. Parietal bone of scalp on cut section.
Mandela Maxilla Frontal bone Parietal bone Nasal bone
11. Ultimately, the post-mortem of the body of deceased Abhijeet was conducted. In the opinion of Autopsy Surgeon, the cause of death of aforesaid deceased was shock and hemorrhage as a result of ante-mortem head injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of aforesaid deceased.
1. Chop wound about (6 x 1.5)cm brain deep Lt. side of parietal bone of scalp situated at 4.5 cm. from Lt. eye brow.
2. Chop wound about 3.0cm x 0.5cm at Lt. Temporal bone of scalp situated at 9.0cm from Lt. Ear.
3. Chop wound about (4x0.5)cm at Rt. occipital bone of scalp.
4. Chop wound about 1.5cm x 1.5cm rt. Side of face situated at 3.0cm from Rt. Ear.
5. Chop wound about (6x1.0)cm at Rt. chin.
6. Chop wound (3x1)cm at below lower lip.
7. Chop wound (1.3x3)cm Lt. lateral of neck 1cm from Lt. ear.
8. An abrasion about (3x2)cm at Rt. knee joint.
9. An abrasion (1x1)cm at Lt. index finger.
12. During the course of investigation, Investigating Officer examined first informant and other witnesses namely Smt. Kishori, Smt. Leelawati, Satguru, Shiv Prasad and Malkhan and Ram Swaroop under section 161 Cr.P.C.. On the basis of above and other material collected by him during the course of investigation, Investigating Officer concluded that complicity of named accused alone is established in the crime in question. He, accordingly, submitted the charge-sheet dated 21.01.2021, whereby all the named accused have been charge-sheeted under sections 147, 148, 302, 504, 506, 34 I.P.C.
13. After submission of aforementioned charge-sheet, cognizance was taken upon same by court concerned. However, counsel for the parties could not inform the Court as to what has happended subsequent to the cognizance taking order passed by court below.
14. At the very outset, it is jointly urged by learned counsel for applicants that co-accused Smt. Machla, Smt. Shakuntala and Smt. Shivwati have been enlarged on bail by this Court, vide order dated 22.12.2021 passed in Criminal Misc. Bail Application No.28088 of 2021 (Smt. Machla and 2 Others Vs. State of U.P.). For ready reference, same is reproduced herein under:-
"Heard Sri Brijesh Sahai, assisted by Sri Bhavya Sahai, learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicants Smt.Machhla, Smt.Shakuntala & Smt.Shivwati with a prayer to release them on bail in Case Crime No.931 of 2020, under Sections 147, 148, 302, 504, 506 I.P.C., P.S. Kotwali Nagar, District Banda, during pendency of the trial.
It is argued by the learned counsel for the applicants that applicants are lady and have been falsely implicated in the present case. 14 persons are named in the First Information Report and three persons have received injury which was caused by lathi, danda and sharp edged weapon. He next argued that on the pointing out of applicant no.2 Smt.Shakuntala, danda has been recovered but from the possession of applicant nos. 1 and 3, nothing has been said to be recovered. From perusal of the First Information Report, there is no evidence against the applicants to commit the alleged incident. Applicants are neighbour of the other co-accused. From the postmortem report, there is no injury caused by danda. On the pointing out of the co-accused, Deoraj an axe has been recovered. There is no prospect of trial of the present case being concluded in near future due to heavy dockets. The applicants are not a previous convict. The applicant no.1 & 2 are languishing in jail since 22.11.2020 and applicant no.3 is languishing in jail since 08.01.2021 and in case they are enlarged on bail they will not misuse the liberty of bail.
Learned A.G.A. has opposed the bail prayer of the applicant.
Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case and the mandate laid down by the Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22, the Court is of the view that the applicants have made out a case for bail. The bail application is allowed.
Let the applicants, Smt.Machhla, Smt.Shakuntala & Smt Shivwati, be released on bail in Case Crime No.931 of 2020, under Sections 147, 148, 302, 504, 506 I.P.C., P.S. Kotwali Nagar, District Banda on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicants shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicants shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 22.12.2021"
15. On the aforesaid premise, it is jointly contended by learned counsel for the applicants that case of present applicants is similar and identical to aforesaid named/charge-sheeted accused, who have already been enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicants could be distinguished from aforementioned named/charge-sheeted accused, who have already been enlarged on bail so as to deny them bail. It is thus urged that for the facts and reasons recorded in the order dated 22.12.2021, applicants are also liable to be enlarged on bail on the ground of parity.
16. It is then jointly contended by learned counsel for applicants that from perusal of the F.I.R. giving rise to this application for bail, it is apparent that all the named 15 accused have been assigned general role. The weapon held by the named accused has not been specified in the F.I.R. With reference to above, learned counsel for the applicants have invited attention of Court to the post-mortem report of the deceased and on basis thereof, they submit that deceased have sustained fatal chop injuries. The aforesaid injuries could have been caused only by a sharp edged weapon i.e. knife or an axe.
17. It is further submitted that after arrest of applicants and others, recovery of weapons of assault were made on their pointing out. The same is tabulated herein under:-
Name of accused Recovery weapon Suresh Wooden danda Shiv Poojan Wooden danda (bet) Shakuntala, Kamta, Rohit Danda Dharamveer Danda Somchand Axe Raj - Bamboo danda
18. On the aforesaid premise, it is sought to be urged that case of other applicants is distinguishable from charge-sheeted accused Somchand.
19. It is next contended that irrespective of above, the alleged recoveries in respect of weapon of assault alleged to have used by applicants are false and implanted. There is no independent witness of recovery. As such, the alleged recoveries cannot be used against applicants.
20. It is further contended that the author of the fatal incised wound sustained by the deceased have not been specified in the F.I.R. As such, the role assigned to all the accused are general. Applicants, therefore, cannot be held to be the authors of the fatal chop injuries (incised wound) sustained by the deceased.
21. It is lastly contended that applicants are men of clean antecedents, inasmuch as, they have no criminal history to their credit except the present one. Applicant- Suraj is in jail since 11.01.2021, applicant- Dharmendra is in jail since 09.01.2021, applicant- Dharamveer is in jail since 23.11.2020 and applicants- Rohit and Kamta are in jail since 22.11.2020. As such, they have undergone sufficient period of incarceration. It is thus urged by learned counsel for applicants that applicants are liable to be enlarged on bail. In case, they are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
22. Per contra, the learned A.G.A. has opposed these applications for bail. He submits that applicants are named as well as charge-sheeted accused. They, therefore, do not deserve any sympathy of this Court. It is next contended that on account of criminality committed by applicants along with others, three persons of the same family i.e. the mother, sister and son have died a brutal death. As such, no indulgence be extended by this Court in favour of applicants. Applicants have been charge-sheeted under section 34 I.P.C. also, as such, there is common intention on the part of applicants to commit the crime in question. In view of above, the criminality committed by applicants is interlinked and intertwined and, therefore, cannot be separated or segregated. As such, bail applications are liable to be rejected. The bail orders passed in favour of co-accused is in respect of such co-accused, who are ladies. They have been granted the benefit of section 437 Cr.P.C. Thus, no parity can be claimed with the order dated 22.12.2021. However, learned A.G.A. could not dispute the factual and legal submissions urged by learned counsel for applicants.
23. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of record and keeping in view the nature of offence, evidence, complicity of accused and accusations made but without expressing any opinion on the merits of case, applicant has made out a case for bail. Accordingly, bail application is allowed.
24. Let the applicants, Suraj, Rohit, Kamta, Dharmendra and Dharamveer be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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 APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF THEIR ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANTS FAIL TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANTS 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 APPLICANTS 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 THEM 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 APPLICANTS.
25. However, it is made clear that any wilful violation of above conditions by applicants, shall have serious repercussion on her 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 condition mentioned above.
Order Date :- 9.5.2022 Saif