Allahabad High Court
Dinesh And Another vs State Of U.P. on 15 December, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46009 of 2022 Applicant :- Dinesh And Another Opposite Party :- State of U.P. Counsel for Applicant :- Kartikey Singh,Aushim Luthra,Sr. Advocate Counsel for Opposite Party :- G.A.,Pankaj Kumar Mishra Hon'ble Subhash Vidyarthi,J.
1. Heard Sri Manish Tiwary, the learned Senior Advocate assisted by Sri Aushim Luthra, the learned counsel for the applicants, Sri Arun Kumar Pandey, the learned Additional Government Advocate, Sri Pankaj Kumar Mishra, the learned counsel for the informant and perused the record.
2. Supplementary affidavit filed today is taken on record.
3. The instant application has been filed seeking release of the applicants on bail in Case Crime No. 176 of 2020, under Sections 147, 307, 506 IPC, Police Station Mursan, District Hathras during pendency of the trial in the Court below.
4. The aforesaid case has been registered on the basis of an F.I.R. lodged on 02.11.2020 at 20:15 hours against seven accused persons, including the applicants, alleging that on 01.11.2020 at about 4:00 a.m. when the informant's father was going to ease himself, all the accused persons under a conspiracy and with a common intention, poured some inflammable substance on his father and set him ablaze. The informant's mother was present nearby and she was giving fodder to her Buffalo and she witnessed the incident and the informant further stated that he had seen all the accused persons surrounding his father, who was engulfed in flames.
5. The injured was taken to J.N. Medical College and Hospital A.M.U., Aligarh and the injury form mentions 50-55 % burn, however, the supplementary medical report mentions 40 % thermal burns. He was discharged on 04.11.2020 and the discharge note mentions that he had come to the hospital with 40% burns. He was managed conservatively and was discharged in a satisfactory condition on 04.11.2020.
6. In the statement of the informant recorded on 03.11.2020, he reiterated the F.I.R. version. When a specific question was put to him that he had alleged that the incident was given effect to under a conspiracy, he should explain the conspiracy, he stated that he did not know and he had stated whatever his Advocate had told him.
7. The informant's mother, who is said to be an eye witness of the incident, in her statement recorded on 15.11.2020 has reiterated the F.I.R. averments but she did not mention the name of co-accused Satish in her statement. When a question was put to her, as to why she did not mention the name of Satish, she stated that it was dark at the time of the incident and she did not see Satish being involved in the incident and she could not say whether or not he was involved in the incident.
8. The Police has recorded statements of several independent witnesses during investigation, all of whom have stated that the incident had occurred at 4:00 a.m. and no one was present on the spot. All of them have stated that there is an old animosity between the family of the accused persons and that of the informant and litigations are going on between them. They stated that Satish is a simple person who resides in the neighbourhood and as he does not agree to become a witness in favour of the family of the informant, he has been falsely implicated in the present case.
9. In the affidavit filed in support of the bail application, it has been stated that the applicants are innocent and they have been falsely implicated in the present case.
10. A supplementary affidavit has been filed on behalf of the applicants disclosing their involvement in three earlier cases, in all of which, the applicants have already been granted bail.
11. A copy of the relevant extract of the Case Diary has also been annexed with the supplementary affidavit which shows that on the basis of the statements of the independent witnesses recorded during investigation, co-accused Atyendra, Manju and Prashant have been exonerated by the Investigating Officer.
12. In his statement recorded on 22.12.2020 under Section 161 Cr.P.C., the injured stated that all the accused persons belong to his family and they are his cousins etc. He did not mention the name of Satish and in response to the specific question as to why he did not mention his name, the informant stated that he had got nervous at the time of the incident and for this reason, he cannot say anything in this regard.
13. Sri Manish Tiwary, the learned Senior Advocate appearing on behalf of the applicants has submitted that the incident is alleged to have taken place on 01.11.2020 at 4:00 a.m. whereas the F.I.R. has been lodged on 02.11.2020 at 20:15 hours i.e. after a lapse of almost two days, which indicate a possibility of concocting a false story during the intervening period. He has pointed out discrepancies in the injury form, mentions 50-55 % burn at one place and at other place it mentions 40 % burn and the injury has not been reported to be grievous in nature.
14. The learned Senior Advocate has laid stress on the fact that in the statement of the informant recorded on 03.11.2020 under Section 161 Cr.P.C., he has stated that the statement given by him is as per advice of an Advocate. The informant's mother has stated that it was dark at the time of the incident and she could not see Satish. All the independent witnesses examined have stated that since the incident had occurred on 4:00 a.m. nobody was present there and all of them have stated that although they did not know about the other persons' involvement in the incident, Satish has surely been implicated falsely as he does not agree to give evidence in favour of the informant's side in pending litigations.
15. Per contra, the learned A.G.A. as well as the learned counsel for the informant have vehemently opposed the prayer for grant of bail to the applicants.
16. On the basis of instructions, the learned A.G.A. has stated that during investigation it has been recorded that as per the advice of a Forensic Expert the pattern of burn injuries indicates use of some inflammable substance in the incident but no evidence of any inflammable material having been thrown on the injured person was found. The opinion is that there is not enough probability of any such substance having been poured by the injured person himself.
17. The learned counsel for the informant has submitted that there is an old animosity between the family of the informant and accused persons and several litigations are going on between them. On an earlier occasion, the accused persons had made an attempt to kill the informant's mother and Case Crime No. 547 of 2015 was lodged in Police Station Mursan, District Hathras. After Police submitted a final report in the matter, the case was treated as complaint case and it is still pending adjudication.
18. The applicant is languishing in jail since 02.11.2020.
19. Having considered the aforesaid facts and circumstances, what prima facie appears from the material available on record before the Court at this stage is that there is a delay of about two days in lodging the F.I.R.; that the informant has stated in his statement recorded on 03.11.2020 that he had given the statement as per the advice given by the Advocate; that the injured person was discharged on 04.11.2020 in a satisfactory condition and it is mentioned that he had suffered 40 % burn injuries; that the eye witness of the incident are the informant and his mother and the informant's mother stated that it was dark at the time of the incident; that the implication of Satish in the F.I.R. has not been supported by the statements of any persons, including the injured and his wife; that all other witnesses examined during investigation have stated that since it was 4:00 a.m., no person was present at the time of the occurrence and that although as many as seven persons had been implicated in the F.I.R.; the implication of Atyendra, Manju and Prashant have been found to be false and their names have not been included in the chargesheet and regarding Satish, the injured and his wife as well as all other persons have stated that he was not involved in the incident.
20. Without making any observation on the merit of the case, which may affect the merit of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.
21. In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed.
22. Let the applicants Dinesh and Mahesh @ Raju be released on bail in Case Crime No. 176 of 2020, under Sections 147, 307, 506 IPC, Police Station Mursan, District Hathras on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court below, subject to the following conditions:-
(i) The applicants will not tamper with the evidence during the trial.
(ii) The applicants will not influence any witness.
(iii) The applicants will appear before the trial court on the date fixed, unless personal presence is exempted.
(iv) The applicants 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 to any police officer or tamper with the evidence.
23. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail.
Order Date :- 15.12.2022 Jaswant