Allahabad High Court
Gulshan Pushpakar S/O Munna Pushpakar vs State Of U.P. Thru. Prin. Secy. Home ... on 11 August, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9029 of 2022 Applicant :- Gulshan Pushpakar S/O Munna Pushpakar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lucknow Counsel for Applicant :- Alok Singh Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
This case is taken up in the revised call.
Heard Sri Alok Singh, learned counsel for the applicant and Sri Nirmal Kumar Pandey, learned A.G.A. for the State and perused the record.
This application has been filed seeking the release of the applicant on bail in Case Crime No. 0234 of 2021, under Sections 304, 323, 504, 506 I.P.C., Police Station Lalganj, District Pratapgarh.
Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case due to village rivalry. No such incident took place, as alleged by the prosecution.
Learned counsel for the applicant further submits that as per FIR dated 01.05.2021, the incident was occurred on 30.04.2021. The case of the prosecution in the FIR is to the effect that in the marriage ceremony the applicant and other accused named in the FIR were opposed by the informant and her husband and Jeth Panne Lal for Harsh Firing and for this very reason altercation took place between the parties and in the said altercation, the daughter of the informant, who was aged about two and a half year, was thrown on the floor and she sustained injuries and succumbed to the same.
Learned counsel for the applicant further submits that on the date of incident i.e. 30.04.2021 some altercation took place between the parties and it is not case of Harsh Firing nor on account of this altercation took place nor the applicant and co-accused have thrown the daughter of the informant on floor nor due to the same she sustained injury.
Learned counsel for the applicant further submits that in fact some hot talks took place between the co-accused Aman Puspakar and the husband of the informant-Suresh Kumar Pushpakar, which were in relation to making of video clips and this hot talk converted into altercation and in the altercation, the daughter of the informant fallen down on the floor and she sustained injury, as such, there was no intention of the applicant to cause bodily injury to the deceased which can cause death. He further submits that this fact is evident from the statements of the independent witnesses Munnalal Maali, Sanjay Saroj, Nanke Pushpakar and Munsharif. It further transpires from the statements of these witnesses that no one has opened fire. In this way, the story of the prosecution, as indicate in the FIR, is doubtful.
Learned counsel for the applicant further submits that the informant and and her husband Suresh Kumar Pushpakar both are the interested witnesses and they have supported the story of the prosecution. However, this witness has also in clear terms stated that the fire arms were not used in the marriage ceremony for the purpose of Harsh Firing.
Learned counsel for the applicant further submits that at this stage of the bail as also taking note of the fact that there is altercation between the parties as also taking note of principle of innocence in favour of accused, the weightage to the independent witnesses Munnalal Maali, Sanjay Saroj, Nanke Pushpakar and Munsharif be given in view of the fact that the applicant having no criminal history is in jail since 01.10.2021 and the possibility of conclusion of trial in near future is extremely bleak. It is also submitted that there is no apprehension that after being released on bail, applicant may flee from the course of law or may otherwise misuse the liberty of bail.
Learned counsel for the applicant further pointed out that the similarly circumstances and identically placed other co-accused has already been granted bail by a co-ordinate Bench of this Court vide its order dated 14.07.2022 passed in Bail No. 12091 of 2021 and the case of the applicant is not on worse footing than that of the co-accused who has already granted bail by a co-ordinate Bench this Court, therefore, the bail application of the applicant may also be considered and he should also be released on bail on principles of parity.
Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history, which has been explained in para 24 of the affidavit filed in support of the bail application and the applicant is in jail since 01.10.2021 and has by now done a substantial period of incarceration, therefore, the bail application of the applicant may also be considered by this Court sympathetically and he should also be released on bail.
Learned A.G.A. opposed the prayer for bail but did not dispute this fact that the similarly circumstances and identically placed other co-accused, has already been granted bail by a co-ordinate Bench of this Court.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that the daughter of the informant fallen down on the floor and she sustained injury, as such, there was no intention of the applicant to cause bodily injury to the deceased which can cause death and considering this fact that similarly circumstances and identically placed other co-accused has already been granted bail by a co-ordinate Bench of this Court and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.
The prayer for bail is granted. The application is allowed.
Let the applicant- Gulshan Pushpakar involved in Case Crime No. 0234 of 2021, under Sections 304, 323, 504, 506 I.P.C., Police Station Lalganj, District Pratapgarh be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(5) In case, the applicant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and 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.
(6) The applicant shall remain present, 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.
(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
(8) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- 11.8.2022 Arvind