Allahabad High Court
Jamaloo @ Jamaluddin vs State Of U.P. on 21 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?fi Neutral Citation No. - 2023:AHC:167595 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34011 of 2023 Applicant :- Jamaloo @ Jamaluddin Opposite Party :- State of U.P. Counsel for Applicant :- Mahesh Narain Singh,M.N. Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. M.N. Singh, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Jamaloo @ Jamaluddin, seeking his enlargement on bail in Case Crime No. 0211 of 2022, under Sections 147, 148, 149, 504, 336, 307, 302, 506 IPC, Police Station-Jalesar, District-Etah during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 27.06.2022, a prompt FIR dated 27.06.2022 was lodged by first informant-Jugendra Pal Singh and was registered as Case Crime No. 0211 of 2022, under Sections 147, 148, 149, 504, 336, 308, 506 IPC, Police Station-Jalesar, District-Etah. In the aforesaid FIR, 9 persons namely - (1). Monu @ Keshav, (2) Tejendrapal Singh, (3) Lakhveer @ Lakki, (4) Devendra Pal, (5). Jamalu, (6) Raju, (7) Ramu, (8) Ajay and (9) Hoti have been nominated as named accused whereas an unknown person has also been arraigned as an accused.
5. The gravamen of the allegations made in the FIR to the effect that named accused armed with deadly weapon formed an unlawful assembly and thereafter, they assaulted the nephew of first informant and others. Thus on account of above, the first informant received bullet injury on his left hand, named accused Hoti assaulted Shilendra with a Farsa on his head, named accused Lakhveer @ Lakki assaulted first informant with a Farsa on account of which he sustained various injuries, Monu assaulted Gavendra with Revolver on account of which, he sustained bullet injury on his hand, named accused Lakhveer assaulted first informant with an axe on his hand.
7. After aforementioned FIR was lodged, the injured were referred for medico legal examination. The medico legal examination of injured Shilendra is on record at page 48 of the paper book. As per the medical papers, the injured Shilendra sustained injuries on his head and left arm. As per the medico legal report of injured Gavendra, he does not appear to have sustained any injury on his person. As per the medico legal report of injured Dharmendra, he also does not appear to have sustained any injury. As per the medico legal report of injured Jogendra Pal, no apparent injury on his person was detected by the Doctor who attended him. Subsequently, one of the injured Shilendra died. As per the prosecution story, the role of causing head injury to injured Shilendra is assigned to Hoti.
8. At the very outset, the learned counsel for applicant contends that named accused Hoti, who has already been enlarged on bail by this Court vide order dated 27.7.2023 passed in Criminal Misc. Bail Application No. 33032 of 2023 (Akhand Pratap Singh @ Hoti Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-
"1. Heard Sri Manish Tiwari learned Senior Advocate assisted by Sri Mahesh Narain Singh, learned counsel for the applicant, Sri Satendra Tripathi, learned counsel for the informant and Dr. S.B. Maurya, learned AGA-I for the State-respondent.
2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 211 of 2022, under Sections 147, 148, 149, 504, 336, 307, 302, 506 IPC, Police Station- Jalesar, District- Etah, during pendency of the trial in the court below.
3. FIR of the present case was lodged against the applicant and eight others and one unknown person and according to the FIR, at the time of demarcation of land in presence of Lekhpals, applicant along with other accused persons arrived at spot and he was having riffle and all other accused persons were having their respective weapons and started making assault.
4. It is further mentioned in the FIR that applicant caused farsa injury on the head of the Sheelendra, the father of the informant and also opened fire through his riffle and co-accused Monu opened fire from his riffle upon Gavendra and co-accused Lakhveer also caused axe injury to the informant.
5. Learned counsel for the applicant submitted that initially FIR of the present case was lodged under Sections 147, 148, 149, 504, 336, 308, 506 IPC but after the death of the father of the informant, Sheelendra case was converted under Section 302 IPC.
6. He further submitted that during investigation, two statements of the informant were recorded by the Investigating Officer and in the first statement, he although, repeated the version of the FIR but when his second statement was recorded by the Investigating Officer then he changed his version and stated that applicant caused injury on the head of the deceased through the butt of his riffle and also caused injury through farsa on his head and further stated that co-accused Monu also caused farsa injury on the head of the deceased. He further submitted that there are material contradictions in the statements of two other eye-witnesses, who also claimed themselves to be injured witnesses i.e. Gavendera and Dharmendra. He further submits, injury sustained to both the eye-witnesses were simple in nature.
7. He further submitted that when the deceased Sheelendra was taken to primary health centre then the doctor noted one lacerated wound and his autopsy report also suggests that he died due to one injury sustained by him on his head and as per the allegation applicant and co-accused Monu caused farsa injury on the head of the deceased.
8. He further submitted that during investigation, when the statement of one of the Lekhpal was recorded then he categorically stated that in his presence no such incident was taken place and this fact completely belies the version of the FIR that in present of the two Lekhpals incident took place.
9. He further submitted that bail application of accused persons Monu @ Keshav, Ashish, Ramu, Ajay and Raju have already been allowed and case of applicant is exactly at par with co-accused Monu in view of the statement of the injured witnesses and second statement of the informant. He placed the bail orders of accused persons, which are taken on record and collectively marked as 'A'.
10. He further submitted that although, applicant is having criminal history of five cases but his criminal history has been explained in detail in paragraph no. 50 of the affidavit. He further submitted that enmity between both the sides is admitted, therefore, it appears that only due to previous enmity, applicant has been roped in the present matter along with other accused persons. He further submitted that applicant is in jail in the present matter since 01.07.2022 i.e. for more than a year.
11. Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted it is a case of brutal murder and in the incident, number of persons sustained injuries including informant of the case and specific role of causing injury to the deceased has been assigned to applicant and post-mortem report of the deceased also corroborates the version of the witnesses including injured witnesses but both the counsels could not dispute the fact that as per the FIR and the statements of the witnesses, the alleged incident occurred in presence of two Lekhpals but when the statement of one of the Lekhpals was recorded then he categorically stated that no such incident took place in his presence and the statement of second Lekhpal was not recorded by the Investigating Officer and story narrated by the informant in the FIR has been changed by him in his second statement recorded during investigation and in the second statement, he assigned the role of causing head injury through farsa to the applicant and co-accused Monu @ Keshav and from the autopsy report of the deceased, it appears that deceased sustained one injury on his head and co-accused Monu @ Keshav has been released on bail.
12. Learned counsel for the informant however pointed out that applicant is having criminal history of five cases and he was highly inimical with the deceased and informant, therefore, considering the totality of facts and circumstances of the case, applicant should be released on bail.
13. I have heard learned counsel for the parties and perused the record of the case.
14. From the record however, it reflects that it is a case of brutal murder and in broad day light father of the informant was eliminated but in the FIR, there was allegation against the applicant that he caused farsa injury on the head of the deceased and also used riffle however, when the second statement of the informant was recorded under Section 161 Cr.P.C. then he stated that applicant used the butt of his riffle and also caused farsa injury on the head of the deceased and he also assigned the role of causing head injury to the deceased through farsa to co-accused Monu @ Keshav. Further, when the second statements of two injured Dharmendra and Govendra were recorded by Investigating Officer then they also stated that applicant used the butt of rifle but they did not state that applicant also used 'farsa' and they stated that co-accused Monu@ Keshav caused farsa injury on the head of the deceased and applicant also used the butt of his rifle on the head of the deceased. Further, injury sustained to injured persons appears to be simple.
15. Further, it appears that deceased died due to single head injury of his head and role of causing head injury to him assigned to applicant and co-accused Monu@ Keshav and Keshav has already enlarged on bail and case of applicant is at par with him on merit.
16. Further, as per the prosecution, incident took place at the time of demarcation in presence of two Lekhpals but during investigation, when the statement of one of the Lekhpals was recorded by the Investigating Officer then he stated that no such incident was taken place in his presence and statement of the second Lekhpal was not recorded by the Investigating Officer during investigation.
17. Further, bitter animosity between both the sides is admitted and although, applicant is having criminal history of five cases but in paragraph no. 50 of the affidavit his criminal history has been explained and he is in jail since July, 2022 i.e. for more than a year.
18. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is entitled to be released on bail.
19. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
20. Let the applicant- Akhand Pratap Singh @ Hoti be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant shall not directly or indirectly, make 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 any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
21. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
22. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial."
8. Learned counsel for applicant has then invited the attention of the Court to the document occurring at page 120 of the paper book, wherein a request was made by the Investigating Officer to the Chief Medical Officer, S.N. Medical College, Agra to supply the papers pertaining to the injured Shilendra Pal Singh and Jogendra Pal Singh and they were said to have been treated in the Medical College. On this request so made, the Principal of Medical College has written in categorical terms that they have not undergone any treatment at the Medical College. Attention of Court was then invited to the document occurring at page 66 of the paper book. As per the FIR, the occurrence took place when the Amin was taking measurement. However, the concerned Amin in his statement recorded under Section 161 Cr.P.C. has categorically stated that no occurrence took place at the time, when he was undertaking measurement of the land in dispute. On the above premise, the very prosecution story so for as the present applicant is concerned is sought to be dislodged by the learned counsel for applicant. The learned counsel for applicant thus contends that since there is no medical evidence to support the ocular version in respect of injuries sustained by the first informant, Shilendra Pal Singh, therefore, the present applicant is liable to be enlarged on bail. The other co-accused have already been enlarged on bail by this Court.
9. Even otherwise, applicant has criminal history of 1 case which has been explained in paragraph 56 of the affidavit filed in support of the bail application. Applicant is in jail since 01.07.2022. As such, he has undergone more than 1 year, 1 month and 20 days 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 circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the cumulative strength of above, it is thus urged by the earned counsel for applicant 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. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. 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, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that prima-facie the medical evidence does not support the prosecution story insofar as, it relates to the first informant Jugendra Pal Singh, the role of causing the fatal head injury on the body of the deceased namely Shilendra Pal Singh has been assigned to co-accused Hoti @ Akhand Pratap Singh, who has already been enlarged on bail, the explained criminal history of applicant, the period of incarceration undergone and also a fact that the police report in terms of Section 173(2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), 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-Jamaloo @ Jamaluddin, 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 :- 21.8.2023 Vinay