Allahabad High Court
Anish@ Mithai vs State Of U.P. on 4 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26816 of 2022 Applicant :- Anish@ Mithai Opposite Party :- State of U.P. Counsel for Applicant :- Tanisha Jahangir Monir Counsel for Opposite Party :- G.A.,Munna Kumar Singh Hon'ble Rajeev Misra,J.
1. Heard Ms. Tanisha Jahangir Monir, the learned counsel for applicant, the learned A.G.A. for State and Mr. Munna Kumar Singh, the learned counsel representing first informant.
2. Perused the record.
3. Instant application for bail has been filed by applicant-Anish@ Mithai seeking his enlargement on bail in Case Crime No. 109 of 2021 under Sections 302, 34, 504, 506 I.P.C., Police Station- Karimuddinpur,, District-Ghazipur, during pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 27.05.2021, a delayed F.I.R. dated 28.05.2021 was lodged by first informant Sri Bansnarayan Yadav (Father of the prosecutrix) and was registered as Case Crime No. 109 of 2021 under Sections 34, 307, 504, 506 I.P.C., Police Station- Karimuddinpur,, District-Ghazipur. In the aforesaid F.I.R., four persons namely Ajeet, Anish @ Mithai (applicant herein), Manish @ Pardeshi and Shashi @ Shashikant have been as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that a scuffle took place in between first informant and accused. Thereafter, a gun shot was fired by Ajeet, which missed. Subsequently, another gun shot was fired by Anish @ Mithal i.e. applicant herein, which hit at the stomach of the injured namely Bansnarayan.
6. Subsequent to aforesaid F.I.R., the injured was referred for treatment in a private Hospital. He was discharged from the said Hospital on the same day i.e. 10.06.2021. The discharge summery contains a recital that the injured sustained a gun shot injury on the left side of abdomen. Subsequently, the injured was re-admitted to the Hospital on account of certain complaints raised by him but he ultimately died on 08.09.2021. The death certificate of deceased Bansnarayan dated 08.09.2021 issued by concerned Hospital is on the record at page 24 of the paper-book. Perusal of same goes to show that deceased has died due to Cardio Respiratory Failure. Subsequently, post-mortem on the body of deceasd was conducted on 08.09.2021. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:
"1. Stitch wound 10 cm Horizontally place 5 stitch Rt. side of abdomen placed 2 cm from mid line 2 cm from anterior superior iliac spine.
2. Old heal scar wound 15 cm. at mid line in front of abdomen located 12 cm below sternum.
3. Old heal scar wound 1.5 x 11.5 cm Lt. abdomen from mid line & 6 cm above anterior superior iliac spine on open abdomen. Intestinal re-pair with ascetic fluid one and half leter found. Gangrenous changers present in small and large intestine."
7. In the opinion of Autopsy Surgeon, deceased died on account of septicaemia as a result of ante-mortem injury noted above.
8. After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He examined first informant and other witness under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly, submitted the charge-sheet dated 12.01.2022 whereby named accused have been charge-sheeted under Sections 302, 34, 504 and 506 I.P.C.
9. Learned counsel for applicant submits that the incident giving rise to present criminal proceedings occurred on 27.05.2022. However, deceased died on 08.09.2021. There is contradiction with regard to cause of death of the deceased. As per death certificate, the deceased died on account Cardio Respiratory Failure whereas as per post-mortem report, the deceased died on account of septicaemia as a result of ante-mortem injury sustained by him. Drawing a parallel between F.I.R. and medical evidence regarding cause of death of deceased as noted above, learned counsel for applicant submits that prima-facie, offence under Section 302 I.P.C. is not established against applicant. It is lastly contended that applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except present one. Applicant is in jail since 05.07.2021. As such, he has undergone almost one year and four months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. The charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during course of trial. On the cumulative strength of above, she submits that applicant is liable to be enlarged on bail
10. Per contra, the learned A.G.A. and Mr. Munna Kumar Singh, the learned counsel representing first informant have opposed the present application for bail. They submits that applicant is a named as well as charge sheeted accused. Applicant is guilty of having committed an offence punishable under Section 302 I.P.C. Therefore, applicant does not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that the occurrence took place on 27.05.2021 whereas the deceased died on 08.09.2021, there being contradiction in the medical evidence with regard to cause of death of deceased but without expressing any opinion on the merits of the case, applicant has made out a case for bail, at this stage.
12. Accordingly, present application for bail is allowed.
13. Let the applicant- Anish@ Mithai involved in aforesaid case crime number be released on bail on 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.
14. 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 :- 4.11.2022/YK