Allahabad High Court
Bhure vs State Of U.P. And Another on 12 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:137757 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22577 of 2023 Applicant :- Bhure Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ramendra Pal Singh,Kumar Kartikeya Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. A. K. Singh, Advocate holding brief of Mr. Kumar Kartikeya, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Bhure seeking his enlargement on bail in Case Crime No. 374 of 2021 under Sections 302 I.P.C., Police Station-Bahjoi, District-Sambhal, during the pendency of trial i.e. Sessions Trial No. 684 of 2022 (State Vs. Bhure) under Section 304 I.P.C. now pending in the court of District and Sessions Judge, Sambhal.
4. Record shows that in respect of an incident, which is alleged to have occurred on 06.08.2021, a prompt F.I.R. dated 06.01.2021 was lodged by first informant Ranjeet Meena (nephew of deceased) and was registered as Case Crime No. 374 of 2021 under Sections 304 I.P.C., Police Station-Bahjoi, District-Sambhal. In the aforesaid F.I.R. four persons namely Bhure, Deepak, Pratap and Pappu have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that name accused assaulted the uncle of the first informant on his head with iron pipe on account of which, he sustained injury. The injured was taken to the Hospital where he succumbed to the injury sustained by him during treatment.
6. At the very outset, the learned counsel for applicant submits that applicnat had earlier approached this Court by means of Criminal Misc. Bail Application NO. 5472 of 2021 (Bhure Vs. State of U.P.) seeking his enlargement on bail under Section 304 Cr.P.C. However, aforesaid bail application came to be rejected vide order dated 04.04.2022. For ready reference the order dated 04.04.2022 is reproduced hereinin under:
"Heard Sri Ajay Kumar Srivastava, learned counsel for the applicant, Sri Pankaj Mishra, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Bhure, seeking enlargement on bail during trial in connection with Case Crime No. 374 of 2021, under Section 304 I.P.C., registered at Police Station Bahjoi, District Sambhal.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the site plan shows the place of occurrence to be a different place whereas in the first information report there is a reference that the incident has taken place when Malkhan- the deceased went to the applicant and asked for his money. It is also argued that the site plan does not show the house of applicant anywhere and as such the place of occurrence is disputed. The applicant has no criminal history as stated in para 14 of the affidavit filed in support of bail application and is in jail since 6.8.2021.
Per contra, learned counsel for the State have vehemently opposed the prayer for bail and argued that the applicant is named in the first information report and there is an allegation that he assaulted the deceased with an iron pipe on his head, which gets corroboration from the post mortem examination report, wherein, cause of death has been opined as shock and hemorrhage due to antemortem head injury and the deceased was found to be received a lacerated wound on the top of skull and as such the applicant is involved in the occurrence.
After having heard the learned counsel for the parties and perusing the record, it is evident that the applicant is named in the first information report. He is main assailant. The medical evidence corroborates to the case of prosecution.
Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
(Samit Gopal) Order Date :- 4.4.2022 "
7. It is next contended that during the course of investigation applicant Bhure has been identified as the author of the head injury sustained by the deceased. Subsequently, case was altered under Section 302 I.P.C. He has then invited the attention of the Court to the charge sheet dated 21.09.2021 whereby applicant was charge sheeted under Section 304 I.P.C. Upon further investigation, Police has submitted the charge-shet dated 17.03.2022 wherein applicant has been charge sheeted under Section 302 I.P.C. In the aforesaid charge-sheet as many as 7 prosecution witnesses have been nominated. Out of seven prosecution witnesses so nominated, three prosecution witnesses of fact namely P.-W.- 1Ranjeet Meena (Nephew of the Decesased), P.W.-2 Smt. Bala (wife of deceased) and P.W.-3 Prem, an independent witness have been examined but their statements do not go to prove the prosecution story.
8. According to the learned counsel for applicant, other witnesses nominated in the charge-sheet are the formal witnesses. Referring to the statement of P.W.-1, P.W-2 and P.W.3, the learned counsel for applicant submits that they have not supported the F.I.R. inasmuch as P.W-1 stated that he was not present at the time of occurrence. P.W.-2 stated that he reached the place of occurrence after hearing the shout. On the above premise, the learned counsel for applicant submits that they are not eye witness of the occurrence as per deposition of aforementioned three prosecution witnesses. Since present case is a case of no evidence, therefore, applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 06.08.2021. As such he has undergone more than one year and eleven months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, learned counsel for applicant 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.
9. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that during the pendency of investigation, the complicity of suppliant has been established in the crime in question. Prosecution evidence is not yet over, therefore dictates of prudence require that no indulgence be granted by this Court in favour of applicant till the conclusion of prosecution evidence. It is thus urged by the learned A.G.A. that even though complicity of applicant is not established in the crime in questionas per the prosecution witnesses of fact examined upto this stage but since other four prosecution witnesses nominated in the charge sheet (who are the formal witnesses) are yet to be examined the present appliant for bail is liable to be rejected. 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.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant coupled with the fact that out of the seven prosecution witnesses nominated in the charge sheet three prosecution witnesses of fact of fact have been examinedbefore court below but they have not supported the I.F.R. inasmuch as they are not eye witness of the occurrence, as such the present case is a case of no evidence, the clean antecedents of the applicant, period of incarceration undergone, no such circumstance having been pointed by the learned A.G.A. necessitating the continuation of custodial arrest of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
11. Accordingly, present application for bail is allowed.
12. Let the applicant-Bhure involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
13. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison Order Date :- 12.7.2023 YK