Allahabad High Court
Praveen vs State Of U.P. on 22 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41219 of 2021 Applicant :- Praveen Opposite Party :- State of U.P. Counsel for Applicant :- Ashwini Kumar Singh,Ranjana Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. A.K. Singh, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed applicant Praveen seeking his enlargement on bail in Case Crime No. 271 of 2022, under sections 328, 304, 379, 511 IPC, Police Station- Loni Border, District Ghaziabad during the pendency of trial.
Perused the record.
It transpires from record that in respect of an incident which is alleged to have occurred on 30.4.2021 a belated F.I.R. dated 3.5.2021 was lodged by first informant Kajal and was registered as Case Crime No. 271 of 2022, under sections 328, 304, 379, 511 IPC, Police Station- Loni Border, District Ghaziabad. In the aforesaid F.I.R. two persons namely, Praveen and Sonu have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that that on 30.4.2021, father of first informant was recovered in unconscious stage. He was then taken to MMG Hospital, Ghaziabad. At is this jucture, father of first informant is alleged to have disclosed the first informant that something to eat was given by named accused to her father. During course of treatment, father of first informant ultimately died.
After lodging of aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Thereafter the post mortem of the body of deceased was conducted at VMMG Safdargung Hospital, New Delhi. The Doctor who conducted autopsy of the body of deceased, ultimately, penned the death summary of deceased as follows:
"unit head dr. R.Manoj, physian dr. nishant, pt. nameganga,age/sexa/m,mrd 27343,doa2/5/7, 07.04 am,doe3/5/21 07.00. patient refered from Ghaziabad mmg hoshital. patient havi a/h/o unknown substance poisionery. Patient presented in hospital c/o loc. Patient inluhated in elarp a i/v/o poor gcs. n0 h/o rash, petch,malena or bleeding from any site. No h/o copd.cad cva. No h/a any other cronic illeness. told by attendard. no h/o urine output burning michiranon.no h/o any other chronic ille o/e patient is unconscious. poor gcs .bp 100/70, puls 84, weight 58 kg,temp afitnile spo2 98, o2 suppc, cvss 1s2,cns .b/l ae, p/a soft bs. inveslahon hb 13.4, mcv 82, plt 121, wbc 12900, na/t137/6 bu/creal 98/1.9 tbl 0.5, ast/alt/alp 6299/2397/171 treatment injection altropone 2 mg..... patient presented in hospital above mentioned complain chest complain for relevant inve. Have been done pealed accordinglr. patient sudden cardiorespiratory arrest. started immediately. but patient not revived. declared dead on 3/5/21, 7.00 am sd, Dr. MANOJ KUMAR PG RESIDENT DEPARTMENT OF INTERNAL MEDICINE VMMG SAFDARJUNG HOSPITAL NEW DELHI "
However, in order to ascertain the exact cause of death, the viscera was preserved.
Learned A.G.A. has placed before the Court the viscera report dated 14.10.2022. In the opinion of Senior Chemical analyist, Organochloro, Insectiside and Ethail Alchol were found in the samples of the body of deceased.
Investigating Officer thereafter examined various witnesses, including first informant, Kajal, daughter of deceased and the owner of Rikshaw, Nitin. Both these witnesses have supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of the named accused is established in the crime in question. Accordingly he submitted the charge sheet dated 24.6.2021, whereby applicant has been charge-sheeted under sections 328, 304, 379, 511 IPC .
Learned counsel for applicant contends that though the applicant is a named as well as charge sheeted accused but he is innocent. Referring to the post mortem report of deceased, he submits that death of deceased has occurred on account of cardiac respiratory arrest. Moreover, the Doctor who conducted autopsy of the body of deceased did not find any ante-mortem injury on the body of deceased. As such, no offence as complained of is made out against applicant. The incident giving rise to present criminal proceedings occurred on 30.4.2021, whereas the death of deceased occurred on 3.5.2021. However, no statement of the deceased was recorded under section 161 Cr.P.C nor any dying declaration of deceased was recorded, Oral dying declaration referred to in the F.I.R. appears to be improbable inasmuch as neither the date of said oral dying declaration has been mentioned nor there is any thing on record to suggest that the deceased was in a fit state of mind to make the statement and also understood the same. Moreover, no steps were taken to get the statement of injured recorded. There is no eye-witness of the occurrence Present case is therefore based upon circumstantial evidence. However, no such incriminating circumstances have been gathered by Investigating Officer which are in proximity to time and manner of occurrence and point at the guilt of the applicant and no other hypothesis. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 4.5.2021. As such, he has undergone more than one year and 8 months of incarceration. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A has opposed this application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. However, he could not dislodge the factual/illegal submissions urged by learned counsel for applicant.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that as per medical opinion, cause of death of deceased is Cardiac Respiratory Arrest, statement of witnesses examined under section 161 Cr.P.C., does not detail the manner of occurrence, the failure on the part of the prosecution in not getting the statement of the prosecutrix recorded under section 161 Cr.P.C. or his dying declaration, there bein no such incriminating circumstances to infer the guilt of the accused but without making any comments on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Praveen, be released on bail in the aforesaid case crime number 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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 HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 22.12.2022 Arshad