Allahabad High Court
Sri Krishna Rathor vs State Of Uttar Pradesh Thru Secy. Home ... on 18 February, 2022
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 862 of 2022 Applicant :- Sri Krishna Rathor Opposite Party :- State Of Uttar Pradesh Thru Secy. Home Lucknow Counsel for Applicant :- Suyesh Pradhan Counsel for Opposite Party :- G.A. Hon'ble Vikas Kunvar Srivastav,J.
1. The case is called out.
2. Learned counsel for the bail applicant, Sri Vaibhav Srivastava, Advocate assisted by Sri Suyesh Pradhan, Advocate and learned A.G.A. for the State, Sri Ajay Kumar Singh Tomar, Advocate are physically present in the Court.
3. The present bail application is moved on behalf of accused-applicant Sri Krishna Rathor, involved in Case Crime No.511 of 2021, under Section 304 of the I.P.C., registered at Police Station Sandana, District Sitapur.
4. The occasion of present bail application has arisen on rejection of bail plea of the accused-applicant by learned Special Judge, Sitapur vide order dated 11.01.2022.
5. Counter affidavit and rejoinder affidavit have duly been exchanged between the contesting parties to the case, as such, the case is ripe for hearing.
6. Opening the argument, learned counsel for the bail applicant addresses the case as a case of harsh (celebratory) firing but peculiarly enough the firing is done by one inmate of the house in a tilak ceremony of another family member in enthusiasm of the ceremonial spirit. Daringly enough he opened the fire by reason of which a woman of the concerned family got seriously injured and ultimately died on spot. Another peculiarity of the fact lies in the first information report of the incident is not lodged by any of the family members but it was noticed by local police itself entered in G.D. of 07.12.2021. It is reported by the police officer that at about 07:30 P.M. when the tilak ceremony was going on the fire was made open in enthusiasm by accused-applicant causing hurt and fatal injuries to the woman i.e. the deceased victim namely Anju D/o Ramnath and wife of one Pradeep.
7. Learned counsel submitted that there was neither the intention to kill the deceased nor the pistol was aimed to fire on her, therefore, act of the accused-applicant was atmost of rash and negligence. He further added that not only the present accused-applicant but there were so many others also present in the ceremonial crowd who opened harsh (celebratory) firing in the same enthusiasm as shown by the present accused-applicant. Learned counsel further submitted that it is not established by the prosecution that only the present accused-applicant's act was responsible for causing death of the deceased "Anju".
8. Learned A.G.A. on the other hand protested the bail application quoting the statement of witnesses who are relatives and were gathered at the ceremonial place at the relevant time of incident particularly the statement of Smt. Shanti Devi i.e. mother of the deceased, impressing on the fact that she has confined the role of fatal firing causing the death of the deceased immediately on the spot to the present accused-applicant only.
9. Learned A.G.A. further quoted the first information report which was investigated and ultimately charge sheet was submitted wherein number of witnesses are named who were present on spot at the relevant time of incident and have unequivocally stated about the firing, however, some of them have not stated to have seen any particular person firing by whom, the fatal injuries occurred to the deceased "Anju".
10. On the ground of aforesaid materials available on the case diary, learned A.G.A. submitted that offence is not only rash, negligent and irresponsible but also unmindful act with brutality in nature. However, any kind of previous enmity on the part of present accused-applicant with the family members of the deceased is not stated in the counter affidavit even criminal antecedent is not stated.
11. Learned counsel for the bail applicant submitted that the present accused-applicant is a government servant and his employment is the only means of livelihood for his entire family, as such, there is a question at this stage whether he should be given an opportunity to defend himself in the course of trial.
12. Hearing the learned counsel for the bail applicant, learned A.G.A. for the State and after perusing materials available on record, it would be relevant to quote Section 299 of the Indian Penal Code, 1860, which runs as under:-
"299. Culpable homicide. - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Illustrations
(a) A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z`s death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.
Explanation 1 A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2 Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3 The causing of the death of child in the mother`s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born."
13. In the present case which emerges out from the first information report and the statement of the witnesses that the firing was done though without any intention on the occasion of ceremony of tilak in the house of incident where numerous relatives and villagers were gathered not only on the ground but also on the roof of the house of incident, using fire arm in such a crowded gathering is rash and negligent which caused an irreparable loss to the family of the deceased not able to be compensated in terms of money, but since every accused, howsoever graver may be the offence, should be given an opportunity to defend himself by putting evidences in his favour, if any, in the course of trial.
14. In Bhagwan Singh vs The State Of Uttarakhand, Criminal Appeal No.407 of 2020 decided on 18.03.2020 reported in (2020) 14 SCC 184, Hon'ble the Apex Court has observed as under:-
"Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for self-protection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents."
15. In the present case also, it appears prima facie from the evidence on record that the appellant aimed the gun towards the roof and then fired. It was an unfortunate case of misfiring. The applicant ofcourse cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot. He was expected to know that pellets could cause multiple gunshot injuries to the nearby persons even if a single shot was fired. As such by his act the applicant has himself brought his case under the purview of offence under Section 299 of the Indian Penal Code, 1860 punishable under Section 304 of the Indian Penal Code, 1860.
16. Hon'ble the Supreme Court in para 21, 22 and 23 of the judgment given in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in [(2012 1 SCC 40)-(Spectrum Scam Case)], has laid down certain objects of bail under Section 437 & 439 of the Cr.P.C. which are as follows:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."
17. In Prahlad Singh Bhati Vs. NCT, Delhi and another - (2001 4 SCC 280 ), Hon'ble the Supreme Court has held some parameters for grant of bail, which are being quoted hereunder:-
"8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
18. In the present case as the record shows charge sheet has already been submitted by the Investigating Officer before the Court concerned, trial is to be continued, the witnesses are more so inside the family and amongst the native villagers, therefore, there is no possibility of fleeing away from the process of the Court.
19. Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence, as it is held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
20. Keeping into mind the grief and bereaveness of the family who have lost their daughter, though the accused-applicant in the present case may be granted order to be released on bail but some conditions also need to be encumbered on him in a bid to compensate to the bereaved family to an insignificant extent.
21. Let the accused-applicant (Sri Krishna Rathor) involved in Case Crime No.511 of 2021, under Section 304 of the I.P.C., registered at Police Station Sandana, District Sitapur be released on bail only on paying of Rs.5,00,000/- through a bank draft in the name of mother of the deceased namely Smt. Shanti Devi W/o Ramnath and on his furnishing a personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) If proceeding for cancellation of armed license is not done, the District Magistrate, Sitapur is required to initiate proceeding in accordance with law for the purpose to cancel the arm license of the accused-applicant in circumstances of the case.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(iii) 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 of the Indian Penal Code.
(iv) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and if the 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 of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 18.2.2022 Saurabh