Allahabad High Court
Shiv Prakash Maurya vs State Of U.P. on 3 February, 2021
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 30 Case :- BAIL No. - 11125 of 2019 Applicant :- Shiv Prakash Maurya Opposite Party :- State of U.P. Counsel for Applicant :- Nagendra Mohan Counsel for Opposite Party :- Govt. Advocate,Awanish Kumar Upadhyay,Rajesh Chandra Misra,Surendra Kumar Mishra Hon'ble Vikas Kunvar Srivastav,J.
The case is called out.
Heard learned counsel for the applicant, Sri Nagendra Mohan, Advocate, learned counsel for the complainant, Sri Awanish Kumar Upadhyay, Advocate, learned A.G.A for the State, Sri Abhay Kumar, Advocate and perused the record.
The present bail application is moved on behalf of the accused-applicant, Shiv Prakash Maurya involved in Case Crime No.146/2019, under Sections 147, 148, 302, 34 I.P.C., Police Station- Baskhari, District- Ambedkar Nagar.
The occasion of present bail application has arisen on the rejection of bail plea of the accused-applicant by learned Sessions Judge, Ambedkar Nagar vide order dated 24.9.2019.
Counter affidavit and rejoinder affidavit between the parties have been exchanged.
Reading over the F.I.R. lodged by one Jaiprakash Jaiswal, learned counsel for the applicant submitted that on 19.7.2019 three named and two unknown assailants murdered his elder brother, namely Ramchandra Jaiswal.
Learned counsel for the applicant submitted that the present accused-applicant namely, Shiv Prakash Maurya and Narottam Maurya, both the sons of Ram Bhual along with Satya Prakash Maurya @ Rinku and two unknown persons are arraigned as offender in the F.I.R. Learned counsel further submitted that the informant, brother of the deceased, in the F.I.R. itself, admits that in his presence, his brother left the home for his establishment 'Sai Dharmkanta' and when he was taking rest in the office. The named accused-applicant along with two unidentified assailants from unknown vehicles reached there in connection with the old enmity, they hurled quick witted firing upon his brother (deceased) from their fire arms, caused his murder. It is stated in the F.I.R. by the informant that prior to the occurrence, Satya Prakash Maurya was doing reki from last 15 days. He stated further that he himself along with his wife Neetu Jaiswal and some others have seen that assailants waving the fire arms in their hands, fled away from the spot through their motor cycles and four wheelers toward west.
Learned counsel for the applicants in his arguments submitted that there is no eye witness of the occurrence dated 19.7.2019 of incessant quick witted firing by three named and two unknown assailants upon the deceased 'Ramchandra Jaiswal' (the brother of the informant) reported in the First Information Report, causing his homicidal death on the spot. The eye witnesses named in the F.I.R. the informant brother of the deceased and his wife Neetu Jaiswal are falsely posed as eye witnesses, because the F.I.R. itself states that the deceased when left the home for 'Dharmkanta' (the spot of occurrence) after having a meal, they were at home at about 12 O' Noon. It is further argued that the occurrence of firing by assailants happened in the office of the 'Dharmkanta' where the deceased was taking rest and none else with him is reported present in the office, therefore, the informant, his wife or anybody else can not be treated as persons witnessing the occurrence.
Learned counsel further argued that in the F.I.R. all the five assailants including the present accused-applicant (named in the F.I.R.) as well as two unknown are assigned the role of firing from the fire arms held by them, but the post-mortem report mentions two fire arm injuries only on the person of the dead body of the deceased 'Ramchandra Jaiswal', as such, the prosecution story of quick witted firing by all the five assailants is nothing but false implication on the accused-applicant.
It is also contended that the informant in his statement recorded by the Investigating Officer under Section 161 Cr.P.C. tried to improve the F.I.R. story in contradiction by saying that, he was present alongwith his wife at 'Dharmkanta' when occurrence happened. He reiterated the story of quick witted firing upon the deceased by all the five assailants including the present accused-applicant but, when interrogated by the Investigating Officer, as to who were holding fire arm out of the assailants involved in the murder of his brother, he ignored to specify such persons. The investigating officer in the site map of the place of occurrence has not specified and identified the place from where the informant and his wife were allegedly watching the incident.
Learned counsel in connection with his argument with regard to false implication on the accused-applicant and falseness of story about five assailants firing upon the deceased impressed on the non presence of the informant and his wife on the spot of occurrence, drew the attention towards the statement recorded under Section 161 Cr.P.C. of another alleged eye witness named Neetu Jaiswal. Neetu Jaiswal in contradiction with the informant who stated assailants came on the spot on unidentified vehicles, stated that co-accused Satya Prakash Maurya and Narottam Maurya, her native villagers, came on the spot walking, following them, three unknown persons having muffled their faces, came on the spot on motorcycle, whereas present accused-applicant came after them on the spot from his four wheeler ('Scorpio'). She stated further that the deceased was taking rest in the office, the co-accused Satya Prakash Maurya insinuated the three unknown towards office, they entered in the office room and hurled fire on the deceased, meanwhile the present accused-applicant also reached there and stepping down from his Scorpio, he also went inside and fired on the deceased, thereafter all of them fled away from the spot.
Learned counsel drew the attention towards the fact stated in para-17 of the affidavit filed in support of the bail application, which reads as under:-
"That it is pertinent to mention here that on 1.8.2019 two accused persons namely Rahul Verma and Pradeep Yadav were arrested by the police and about whom it is alleged that they are the shooters, who fired at the deceased and from their possession, the fire arms, which were used for firing at the deceased, were recovered and further they have admitted that they have fire at the deceased. "
As the contents and facts in aforesaid para are not denied or controverted in the counter affidavits of the State and the complainant, learned counsel submitted that the accused-applicant has no relation with the occurrence and even he was not present on the spot. He is falsely implicated only by reason of rivalry. Without having credible evidence against the applicant, he is jail since 27.7.2019. He is a permanent local resident of the village in the territorial limits of trial court's jurisdiction, not in position to flee away from the process of the Court. He has no criminal antecedent and is a respectable law abiding person, on the basis of facts and circumstances of the case, the accused-applicant deserves to be released on bail.
In protest of the bail plea urged by the learned counsel for the bail applicant, learned A.G.A., 'Sri Abhay Kumar' and learned counsel for the complainant, 'Sri Awanish Kumar Upadhyay' argued that the informant and his wife both are eye witness of the incident and their statement practically accounting the happening of occurrence, the offenders and the manner of commission cannot be disbelieved as there is no reason for them to falsely implicate the accused-applicant and to save real culprit.
Learned A.G.A. further drew attention towards para-11 of the counter affidavit filed by the State, wherein, it is stated that during investigation the co-accused persons were arrested and from them revolver, country made pistol and cartridges were recovered. The present accused-applicant also was taken on remand from jail to police custody and on his pointing out his licensed revolver was recovered from a gun shop. He read over the recovery memo which discloses, the revolver deposited in a gun shop was handed over to the investigating officer, when he obtained order from the District Magistrate to get the said weapon released from the shop. However, learned A.G.A and learned counsel for the complainant did not show, when the revolver of the present accused-applicant was deposited in the gun shop, whether prior to the occurrence (19.7.2019) or subsequent thereto. The revolver from gun shop was released only on the release order from the District Magistrate, therefore, it is implicit in it that the revolver had been deposited by the applicant seeking permission from the District Magistrate.
Learned A.G.A. has filed a supplementary counter affidavit with Forensic Science Laboratory's report with regard to the use of licensed revolver of the applicant got released from gun shop by the Investigating Officer. The report discloses, this much only, that there is presence of residual amount of nitrite in the barrel as a sign of firing from that. Learned A.G.A and learned counsel for the complainant thus tried to establish the case against the present accused applicant relying on the aforesaid recovery memo, report of F.S.L. coupled with the statements recorded by the Investigating Officer and impressed upon the rejection of bail application.
In rebuttal of the arguments of learned A.G.A. and learned counsel for the complainant, learned counsel for the applicant submitted that learned A.G.A. has not denied the fact of arrest and recovery of weapon from two accused as averred in para-17. Moreover, another unknown assailant Mohd. Nadeem was also arrested and released on bail from this Court. The arrival of present accused applicant on spot is stated by the witness, Neetu Jaiswal after the occurrence of firing by unknown assailants on the deceased. So far as recovery of applicant's licensed revolver is concerned, it is immaterial as neither the presence of accused and participation in crime is not prima facie established, even the licensed revolver when surrendered in the gun shop by order of District Magistrate, whether prior to incident or subsequent thereto is not established. The use of revolver in the occurrence is also not established, the report of F.S.L is only showing presence of nitrate in the barrel, but the explosive material and empty and used cartridges not matched with the said revolver. In the absence of credible evidence the applicant prima facie not connected with the occurrence in question. The accused-applicant is ready and willing to face the trial.
After hearing, learned counsel for the parties and on perusal of the materials placed by respective parties on record, it would be pertinent to refer the object of bail as discussed by Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, in para-21, 22 and 23 as under:-
"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."
Since, learned A.G.A has not rebutted that there is no possibility of fleeing away of the present accused applicant from the process of the Court as well he has no criminal antecedent prior to the present case, therefore, 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, 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.
Learned trial court, in view of the fact that charge-sheet has submitted long back by the prosecution, is directed to expeditiously proceed with the trial, by recording evidence of the prosecution and defence witnesses, if any, in accordance with law, to conclude the hearing and decide the case, as soon as practicably possible within a period of one year from the date, certified copy of the order produced before it.
Looking into the role, complicity of the accused-applicant in the offence, the prima facie case against him at this stage, without making any comment as to the merit of the case, I find it to be a fit case for granting bail.
Let applicants (Shiv Prakash Maurya) involved in Case Crime No.146/2019, under Sections 147, 148, 302, 34 I.P.C., Police Station - Baskhari, District- Ambedkar Nagar be released on bail on his furnishing personal bond of Rs.5,00,000/- 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) 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through their 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.
(iii) 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 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.
(iv) 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 applicants 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 :- 3.2.2021 Gaurav/-