Allahabad High Court
Umesh Kumar Gautam Alias Gabbar vs State Of U.P. on 21 October, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:167244 Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17667 of 2024 Applicant :- Umesh Kumar Gautam Alias Gabbar Opposite Party :- State of U.P. Counsel for Applicant :- Nigamendra Shukla,Om Prakash Pandey,Vipin Kumar Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Vipin Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. This application for bail has been filed by applicant-Umesh Kumar Gautam Alias Gabbar seeking his enlargement on bail in Case Crime No. 219 of 2022 under Sections 302/34 I.P.C., Police Station-Karchana, District-Prayagraj, during the pendency of trial i.e. Sessions Trial No. 177 of 2022 (State Vs. Umesh Kumar Gautam and others), under Sections 302/34 I.P.C., Police Station-Karchana, District-Prayagraj now pending in the Court of Additional District and Sessions Judge, Court No.19, Allahabad.
4. At the very outset, the learned counsel for applicant contends that co-accused Anand Pal has has already been enlarged on bail by this Court vide order dated 29.05.2023 passed in Criminal Misc. Bail Application No. 21641 of 2023 (Anand Pal Vs. State of U.P.). For ready reference, the order dated 29.05.2023 is reproduced hereinin-under:
"1. Heard Sri Quazi Mohammad Akaram, learned counsel for the applicant and Dr. S. B. Maurya, learned AGA-I for the State-respondent.
2. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 219 of 2022, under Sections 302, 34 IPC, Police Station Karchhana, District Prayagraj, during pendency of the trial in the court below.
3. FIR of the present case was lodged against co-accused Gabbar and his unknown associates under sections 307 IPC and according to the FIR, on 14.7.2022 when brother of the informant was on his field co-accused Gabbar alongwith unknown associates caused serious injuries to his brother by making assault through sharp edged weapon.
4. Learned counsel for the applicant submitted that applicant was not named in the FIR but when the statement of the wife of the deceased was recorded under section 161 Cr.P.C. then she disclosed the name of the applicant. He further submitted that initially FIR of the present case was lodged under section 307 IPC but when informant died after about a week then case was converted into section 302 IPC.
5. He further submitted that from the perusal of the statement of the wife of deceased recorded during investigation which has annexed as annexure-5 to the affidavit it appears that according to her deceased a day before his death informed her that applicant and other co-accused persons who are total four in numbers inflicted him knife injuries but her statement does not appear to be convincing as even according to this statement about a day before his death when her husband regained consciousness then he informed her and this fact clearly suggests that actually no such information could be furnished by deceased before his death to his wife as he was unconscious.
6. He further submitted that apart from the statement of the wife of deceased and confessional statement of the accused persons, there is no evidence against the applicant. He next submitted that wife of the deceased has already appeared before the trial court and when trial court recorded her statement then she did not support her earlier statement recorded under section 161 Cr.P.C and has been declared hostile.
7. Per contra, learned AGA opposed the prayer for bail but could not dispute the arguments on fact advanced by learned counsel for the applicant.
8. I have heard learned counsel for the parties and perused the record of the case.
9. It appears that applicant was not named in the FIR, although when the statement of the wife of deceased was recorded during investigation then she disclosed that before his death her husband informed her that applicant and other accused persons inflicted knife injuries to him but statement of the victim recorded during investigation by the Investigating Officer does not appear to be convincing. Further, during trial, wife of the deceased did not support her statement recorded under section 161 Cr.P.C. and has declared hostile.
10. Applicant is not having any criminal history and he is in jail in the present matter since 25.7.2023 i.e for last about ten months.
11. Therefore, considering the aforesaid facts and circumstances of the case, discussed above, in my view, applicant is entitled to be released on bail.
12. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.
13. Let the applicant- Anand Pal, be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-
(i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted.
(ii) The applicant 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 or any police officer or tamper with the evidence.
(iii) The applicant shall not indulge in any criminal and anti-social activity.
14. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.
15. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.
Order Date :- 29.5.2023 "
5. It is then contended by the learned counsel for applicant that another co-accused Om Prakash Pal has has already been enlarged on bail by this Court vide order dated 06.06.2023 passed in Criminal Misc. Bail Application No. 23130 of 2023 (Om Prakash Pal Vs. State of U.P.). For ready reference, the order dated 06.06.2023 reads as under:
"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
Learned counsel for the applicant contended that the applicant has been falsely implicated in the present case. Applicant has no motive to cause this incident. It is further submitted that wife of deceased Nandini had been examined as PW-1 on 20.03.2023 and she had not supported prosecution case with regard to Om Prakash Pal and stated that there was money transaction with Umesh Kumar Gautam @ Gabbar. It is also submitted that her husband had not told the name of Om Prakash Pal. PW-1 had been declared hostile. It is also submitted that co-accused Anand Pal had been granted bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 21641/2023 on 29.05.2023. Initially case was registered under Section 307 I.P.C. and later it was converted in 302 I.P.C. Applicant undertakes that if he is released on bail, he will not misuse the liberty of bail. There is no chance of applicant fleeing away from judicial process or tampering with the witness. Applicant is in custody since 28.07.2022.
Learned A.G.A. vehemently opposed the prayer of bail but could not dispute the arguments on fact advanced by learned counsel for applicant.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Om Prakash Pal be released on bail in Case Crime No. 219/2022, under sections 302, 34 I.P.C., P.S.- Karchhana, District- Prayagraj, during pendency of trial, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not harm and harass the complainant and in any manner whatsoever.
(iv) The applicant will not indulge in any unlawful activities.
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.
Order Date :- 6.6.2023 "
6. It is lastly contended by the learned counsel for applicant that co-accused Krishna Kumar Pal @ Kabutar has also been enlarged on bail by this Court vide order dated 12.06.2023 passed in Criminal Misc. Bail Application No. 24024 of 2023 (Krishan Kumar Pal @ Kabutar Vs. State of U.P.). For ready reference, the order dated 12.06.2023 is extracted herein-below:
"1. Heard Mr. Rizwan Ullah Siddiqui, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant Krishna Kumar Pal @ Kabutar seeking his enlargement on bail in connection with Case Crime No. 219 of 2022, under Section 302, 34 I.P.C., Police Station Karchana, District- Prayagraj during the pendency of trial i.e. Sessions Trial No. 1777 of 2022 (State Vs. Umesh Kumar Gautam) under Section 302, 34 I.P.C., Police Station Karchana, District- Prayagraj, now pending in the court of Additional District Judge, Court No.19 Allahabad.
4. Record shows that in respect of an incident which is alleged to have occurred on 14.07.2022, a delayed F.I.R. dated 15.07.2022 was lodged by the first informant Vanshdari Pal and was registered as Case Crime No. 219 of 2022 under Section 302, 34 I.P.C., Police Station Karchana, District- Prayagraj. In the aforesaid F.I.R. one Gabbar has been nominated as named accused whereas the associates of Gabbar have also been assigned as accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Gabbar along with his associates came to the place where the injured was sleeping in his field alongwith his sheep. The applicant with named accused Gabbar and others are alleged to have come to the aforesaid place. Named accused Gabbar is alleged to have fired gunshot at Salikram Pal (injured) on account of which he sustained injuries.
6. After aforesaid F.I.R. was lodged, investigating officer proceeded with statutory investigation of concerned case crime number. Unfortunately during the pendency of investigation the (Injured) Salikram Pal succumbed to the injuries sustained by him. Accordingly the case was altered to under Section 302/34 I.P.C. After completion of investigation investigating officer submitted the charge sheet dated 01.10.2022 whereby and whereunder four persons, namely, Umesh Kumar Gautam @ Gabbar, i.e. three named accused and were not named accused, namely, Om Prakash Pal , Krishna Kumar Pal @ Kabutar and Anand Pal have been charge sheeted.
7. Learned counsel for applicant contends that co-accused Om Prakash Pal had already been enlarged on bail by this coordinate Bench of this Court vide order dated 06.06.2023 passed in Criminal Misc. Bail Application No. 23130 of 2023 (Om Prakash Pal Vs. State of U.P.) for ready reference the order dated 06.06.2023 is reproduced here-in-above :-
"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
Learned counsel for the applicant contended that the applicant has been falsely implicated in the present case. Applicant has no motive to cause this incident. It is further submitted that wife of deceased Nandini had been examined as PW-1 on 20.03.2023 and she had not supported prosecution case with regard to Om Prakash Pal and stated that there was money transaction with Umesh Kumar Gautam @ Gabbar. It is also submitted that her husband had not told the name of Om Prakash Pal. PW-1 had been declared hostile. It is also submitted that co-accused Anand Pal had been granted bail by co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 21641/2023 on 29.05.2023. Initially case was registered under Section 307 I.P.C. and later it was converted in 302 I.P.C. Applicant undertakes that if he is released on bail, he will not misuse the liberty of bail. There is no chance of applicant fleeing away from judicial process or tampering with the witness. Applicant is in custody since 28.07.2022.
Learned A.G.A. vehemently opposed the prayer of bail but could not dispute the arguments on fact advanced by learned counsel for applicant.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Om Prakash Pal be released on bail in Case Crime No. 219/2022, under sections 302, 34 I.P.C., P.S.- Karchhana, District- Prayagraj, during pendency of trial, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not harm and harass the complainant and in any manner whatsoever.
(iv) The applicant will not indulge in any unlawful activities.
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."
8. Even otherwise, there is no such distinguishing feature on the basis of which the case of present applicant from the above mentioned could be so distinguished so as to deny him bail. It is further submitted that applicant is a man of clean antecedent in as much as he has no criminal history to his credit except the present one. Applicant is in jail since 28.07.2022. As such he has undergone more than 11 months incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. It is then urged that applicant is enlarged on bail.
9. On the above premise, the learned counsel for applicant submits that the case of present applicant is similar and identical to that of co-accused Om Prakash Pal who is also not named in the F.I.R. but a charge sheeted accused. The role of firing is assigned to named accused Umesh Kumar Gautam @ Gabbar. He therefore, submits that in view of the facts and reasons recorded in the order dated 06.06.2023 applicant is liable to be enlarged on bail on the ground of parity.
10. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since the applicant is a charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
11. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, complicity of accused applicant and accusations made coupled with the fact that co-accused Om Prakash Pal has already been enlarged on bail, there being nothing on record to distinguish the case of the present applicant from aforementioned co-accused so as to deny him bail, the clean antecedents of the applicant, the role of firing having been assigned to named accused Umesh Kumar Gautam @ Gabbar, the clean antecedents of the applicant in as much as he has no criminal history to his credit except the present one but without making any comments on the merits of the case, applicant has made out a case for bail.
12. Accordingly, the bail application is allowed.
13. Let the applicant Krishna Kumar Pal @ Kabutar be released on bail in the aforesaid case crime number on his 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.
14. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 12.6.2023 "
7. On the above premise, the learned counsel for applicant contends that case of present applicant is similar and identical to that of aforementioned co-accused, who have already been enlarged on bail. It is thus urged that there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from the aforesaid bailed out co-accused so as to deny him bail. He therefore contends that in view of above and for the facts and reasons recorded in the aforementioned bail orders of co-accused, applicant is also liable to be enlarged on bail on the ground of parity.
8. Learned counsel fro applicant further submits that present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. The complicity of an accused in a case based on circumstantial evidence has to be judged in accordance with the parameters laid down by the Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622 (Paragraph 152). However none of the parameters laid down in aforementioned judgment is satisfied against applicant. As such, the applicant is liable to be enlarged on bail.
9. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 25.07.2022. As such, he has undergone more than two years and two months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
10. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Learned A.G.A. has then invited the attention of Court to the post-mortem report of the deceased, copy of which is on record at page 50 of the paper book. With reference to above, the learned A.G.A. submits that Autopsy Surgeon, who conducted autopsy of the body of the deceased found following ante-mortem injury on the body of deceased:
i. Contusion Rt. hand forearm present.
ii. Trachea stonily tube present.
ii. Cut open drain present (L) side of chest
1) Incised wound present 4 cm X 1 cm on the Rt. side front of neck, bony deep.
2) Abrasion 12 cm X 8 cm on back of over abdomen.
11. The weapon of assault i.e. knife was recovered on the pointing of applicant. Reference was then made by the learned A.G.A. to the F.S.L. report dated 29.09.2022 wherein Scientific Officer, who had conducted chemical examination of the weapon of assault has opined that blood found on weapon of assault is human blood. On the above premise, the learned A.G.A. contends that case of present applicant is clearly distinguishable from aforementioned co-accused, who have already been granted bail. As such, no indulgence be granted by this Court in favour of applicant.
12. When confronted with above, the learned counsel for applicant could not overcome the same.
13. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition of this application for bail could not be dislodged by the learned counsel for applicant, therefore irrespective of the submissions raised by the learned counsel for applicant in support of present application for bail but without expressing any opinion on the merits of the case, this court does not find any new, good or sufficient ground to enlarge the applicant on bail.
14. As a result, present application for bail fails and is liable to be rejected.
15. It is accordingly rejected.
Order Date :- 21.10.2024 YK