Allahabad High Court
Ramashish Rajbhar vs State Of U.P. on 9 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53757 of 2022 Applicant :- Ramashish Rajbhar Opposite Party :- State of U.P. Counsel for Applicant :- Govind Jee Rai Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Govind Jee Rai, the learned counsel for applicant and the learned A.G.A. for State
2. Perused the record.
3. Instant bail application has been filed by applicant-Ramashish Rajbhar seeking his enlargement on bail in Case Crime No.207 of 2021 under Sections 302, 201 I.P.C., Police Station-Narhi, District-Ballia, during the pendency of trial.
4. It transpires from record that in respect of an incident, which is alleged to have occurred on 10.11.2021, a delayed F.I.R. dated 11.11.2022 was lodged by first informant Rajnath Yadav (father of deceased) and was registered as Case Crime No.0207 of 2021 under Sections 302, 201 I.P.C., Police Station-Narhi, District-Ballia. In the aforesaid F. I.R., four persons namely Vinod Rajbhar, Ramashish Rajbhar (applicant herein), Rajoo Rajbhar and Phool Kumari have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that on 10.11.2021 at around 6.00PM named accused Vinod Rajbhar took the son of first informant namely Mangal Yadav to his home. Thereafter, named accused caused death of the son of first informant.
6. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. The Inquest (Panchayatnama) of the body of deceased was conducted on the same day i.e. 11.11.2021. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was characterised as homicidal and cause of death of deceased was said to be on account of assault made by accused person with Lathi, Danda as well as strangulation.
7. Subsequent to above, the post-mortem of the body of deceased was conducted. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on the body of deceased:-
"i. Laceration over forehead size 4 x 1.5 cm muscle deep, present 4 cm above Rt. eyebrow ii. Multiple abrasion present over whole face.
iii. Abrasion and blacking on left eye measuring 5 cm. x 4 cm.
4. Multiple abrasion present on whole chest region and whole abdomen region.
v. Abrasion present over Rt. shoulder size 5 cm x 4 cm, at Rt. shoulder joint.
vi. Swelling of both lip size 5 cm x 4 cm present.
vii. Abrasion present over front of neck region size 16 cm. x 4 cm. extending 7 cm. below Rt. ear to 8 cm. below left ear.
8. In the opinion of Autopsy Surgeon, the cause of death of deceased was "Comma" as a result of ante-mortem injuries.
9. During course of investigation, Investigating Officer examined first informant Rajnath Yadav, Chandan Kumar Rajbhar (eye witness), Kamlesh Rajbhar (eye witness) and Gangajali Devi under Section 161 Cr.PC..
10. Ultimately, on the basis of above and other material collected by Investigating Officer during the course of investigation, which in the opinion of Investigating Officer is prima-facie adverse to named accused, he came to the conclusion that complicity of all the named accused is established in the crime in question. He accordingly submitted the charge sheet dated 19.12.2021 whereby all the named accused including applicant have been charge-sheeted under Sections 302 and 201 I.P.C.
11. At the very outset, learned counsel for applicant submits that co-accused Ranju Rajbhar has already been enlarged on bail by this Court vide order dated 18.05.2022 passed in Criminal Misc. Bail Application No.13837 of 2022 (Ranju Rajbhar Vs. State of U.P.). For ready reference, above order is reproduced herein-under:
"Heard Sri Viveka Nand Rai, learned counsel for the applicant, Sri Chandra Shekhar Rai, learned counsel for the informant as well as learned A.G.A for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.207 of 2021, under Sections 302 and 201 IPC, Police Station- Narahi, District-Ballia is seeking enlargement on bail during the trial. The applicant is languishing in jail since 11.11.2021.
Contention raised by the counsel for the applicant that after leveling omnibus allegation of assault upon all the named accused persons including the present applicant, the present FIR was got registered on 11.11.2021 by one Rajnath Yadav, the informant. From the FIR, it is clear that there was deep rooted tussle was going on between the parties and all the named accused persons have assaulted upon the deceased Mangal Yadav. From the perusal of the post mortem report, it is clear that deceased has sustained as many as seven ante mortem injury and it is not sure that who is the author of that fatal injury.
Sri Chandra Shekhar Rai, learned counsel for the informant opposed the prayer for bail tooth nail by making apprehension that other persons may claim parity with the present applicant.
Learned A.G.A opposed the prayer for bail but could not dispute the aforesaid facts and the legal submissions as argued by the learned counsel for the applicant.
Keeping in view that the applicant is a married woman as distinct entity resides separately and is in jail since November 2021, on compassionate ground she is entitled to be released on bail. However rest of the accused persons named in the FIR shall not claim parity with the present applicant.
Let the applicant, Ranju Rajbhar, 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/APPLICANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE/THEY SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES IS/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/APPLICANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER/THEIR COUNSEL. IN CASE OF HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIS/HER/THEIR UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT/APPLICANTS MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT/APPLICANTS FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIS/HER/THEIR, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT/APPLICANTS 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/APPLICANTS IS/ARE 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 HIS/HER/THEIR 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/APPLICANTS.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant/applicants to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant/applicants shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is/are restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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.
Order Date :- 18.5.2022"
12. Another co-accused Phool Kumar has also been enlarged on bail by this Court vide order dated 19.10.2022 passed in Criminal Misc. Bail Application No.23258 of 2022 ( Phool Kumar Vs. State of U.P.). For ready reference, same is extracted herein-under:
"Heard learned counsel for the applicant as well as the learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Phool Kumari, with a prayer to release her on bail in case crime no.207 of 2021, under Sections 302 and 201 IPC, Police Station- Narahi, District-Ballia, during pendency of trial.
Learned counsel for the applicant has contended that the co-accused, Ranju Rajbhar, has been granted bail by this Court on 18.5.2022 in Criminal Misc. Bail Application No.13837 of 2022. The case of the applicant stands on identical footing, hence the applicant is also entitled for bail on the ground of parity. The applicant is languishing in jail since 11.11.2021.
Learned AGA has opposed the prayer for bail, but does not dispute the claim of parity.
Having considered the submissions of the parties noted above, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that she 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.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of her absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure her 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 her in accordance with law under Section 174-A of the Indian Penal Code.
(v) 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 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 her in accordance with law.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 19.10.2022 "
13. On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to that of co-accused Ranju Rajbhar and Phool Kumari, who have already been enlarged on bail. He also contends that there is no such distinguishing feature on the basis of which case of present applicant can be distinguished from the aforesaid co-accused so as to deny him bail. It is thus urged that in view the facts noted above and for the facts and reasons recorded in aforesaid bail orders of named/charge sheeted co-accused, applicant is also liable to be enlarged on bail on the ground of parity. It is then contended that evidence of last seen is only a against co-accused Vinod Rajbhar and not against other named/charge-sheeted accused. There are three alleged eye witnesses namely Chandan Kumar Rajbhar, Kamlesh Rajbhar and Gangajali Devi, who have implicated the present applicant in the crime in question. However, they are not worthy of reliance inasmuch as the weapon of assault and as to who is the author of fatal injury are conspicuous by their absence, in statements of witnesses recorded under Section 161 Cr.P.C, . Referring to the post mortem report of deceased, learned counsel for applicant submits that deceased had sustained as many as seven injuries, which could have been caused by hard and blunt object. As such, alleged eye witness, prima-facie do not appear to be the eye witness of the occurrence. It is lastly contended that even otherwise applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 11.11.2021. Thus he has under-gone more than one year of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. It is lastly submitted that charge-sheet has already been submitted therefore the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, learned counsel for applicant contends that applicant is liable to be enlarged on bail.
14. Per contra, the learned A.G.A. for State has opposed the present bail application. Learned A.G.A. submits that since applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this Court. The motive behind occurrence is also established against applicant inasmuch as the deceased had solemnised marriage with younger daughter of applicant. He therefore submits that considering the nature and gravity of offence, no sympathy be shown in favour of applicant. However, the learned A.G.A. could not dispute the factual and legal submissions urged by learned counsel for applicant, at this stage.
15. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that criminality alleged against all the named/charge sheeted accused is common. therefore, same is interlinked and intertwined hence incapable of separation or segregation, irrespective of above, two named/charge-sheeted accused i.e. Ranju Rajbhar and Phool Kumari, have already been enlarged on bail, alleged eye witnesses of occurrence have not given clear picture of occurrence inasmuch as weapon of assault has not been mentioned in their statement nor they have nominated the author of fatal injury sustained by deceased, therefore, applicant is entitled to the benefit of doubt at this stage but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
16. Accordingly, present application for bail is allowed.
17. Let the applicant-Ramashish Rajbhar involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
12. 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 of applicant and send him to prison Order Date :- 9.12.2022 YK