Allahabad High Court
Vikrant Rajbhar @ Vikki vs State Of U.P. on 2 March, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51766 of 2022 Applicant :- Vikrant Rajbhar @ Vikki Opposite Party :- State of U.P. Counsel for Applicant :- Bijai Prakash Tiwari Counsel for Opposite Party :- G.A.,Amarjeet Yadav Hon'ble Rajeev Misra,J.
1. Supplementary affidavit filed by learned counsel for applicant in Court today is taken on record.
2. Heard Mr. Bijai Prakash Tiwari, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sunil Kumar Yadav, Advocate holding brief of Mr. Amarjeet Yadav, the learned counsel for first informant/opposite party-2.
3. Perused the Court.
4. This is repeat application for bail has been filed by applicant Vikrant Rajbhar @ Vikki seeking his enlargement on bail in Case Crime No. 92 of 2021 under Sections 147, 148, 149, 323, 504, 506, 427, 452, 307, 302 I.P.C. and Section 7 Criminal Law Amendment Act, 2013, Police Station-Bardah, District-Azamgarh, during the pendency of trial.
6. First bail application of applicant being Criminal Misc. Bail Application No. 2309 of 2022 (Vikrant Rajbhar @ Vikki Vs. State of U.P.) was rejected by this Court by a detailed order dated 04.04.2022. For ready reference same is reproduced herein under:
" 1. Heard Mr. Abdul Mazid, Advocate, holding brief of Mr. Imran Mabood Khan, the learned counsel for applicant, the learned A.G.A. for State and Miss. Bindu Rao, Advocate holding brief of Miss Pooja, the learned counsel for first informant.
2. Perused the record.
3. Instant bail application has been filed by applicant-Vikrant Rajbhar @ Vikkey seeking his enlargement on bail in Case Crime No. 92 of 2021 under Sections 147, 148, 149,323, 504, 506, 427, 452, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment act, Police Station- Bardah, District- Azamgarh, during pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 04.05.2021, a prompt F.I.R. dated 04.05.2021 was lodged by first informant Ramsalat Rajbhar and was registered as Case Crime No. 0092 of 2021 under Sections 147, 148, 149,323, 504, 506, 427, 452, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment act, In the aforesaid F.I.R. six persons namely Adhaya Prasad, Vikrant (applicant herin), Rattilal, Ashok Rajbhar, Pawan, Faiz Ahmad have been arraigned as named accused whereas one unknown person has also been nominated as an accused.
5.The gravamen of the allegations made in the F.I.R. is to the effect that on 04.05.2021 at around 5.40 PM named accused alongwith not named accused armed with country made guns and sharp edged weapons came at the gate of the house of first informant. They started abusing the first informant and his family members. When first informant namely Ramsalat objected to the same, one of the named accused fired a gun shot hitting on the head of Poonam Rajbhar and she died instantly. Another named accused Adhaya Prasad fired gun shot hitting the daughter of first informant namely Priti and she sustained fire-arm injuries. Named accused- Ashok also fired gut shot at the first informant. However, he escaped. Thereafter, named accused assaulted first informant with the butt of the fire-arms, on account of which, first informant sustained injuries on his face. Thereafter, named accused Ratti Lal and Pawan, who were armed with swords assaulted to Ranjit on account which he sustained various injuries. After causing incident, named accused went away by brandishing the guns in their hands and abusing the first informant and other members of the family 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. Thereafter, the inquest (Panchayatnama) of the body of deceased Poonam Rajbhar was conducted. In the opinion of panch witnesses nature of death of deceased was homicidal. Ultimately post-mortem of the body of deceased was conducted on 05.05.2021. In the opinion of Autopsy Surgeon, cause of death of deceased was comma due to ante-mortem fire-arm injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
" i. Fire Arm wound of entry size of 1 cm. x 1cm with brown cavity deep over temporial regions right side about 5 cm above pinna of left ear. Margin inverted with blackening present underlying bone fracture."
7. During course of investigation, Investigating Officer examined first informant namely Ram Salat Rajbhar and other eye witnesses namely Smt. Asha Devi, Smt. Karma Devi, Chhote Lal Rajbhar, Pooja, Ramdulari and Manoj under Section 161 Cr.P.C. Investigating Officer also examined injured witnesses namely Priti Rajbhar and Ranjit Rajbhar under Section 161 Cr.P.C. On the basis of statements of witnesses so examined under Section 161 Cr.P.C. and other material collected by Investigating Officer during course of investigation, which is substantially adverse to named accused, he opined to submit charge sheet. Ultimately, Investigating Officer submitted charge-sheet dated 02.08.2021 whereby Vikrant (applicant herein) Adhaya Prasad, Satiram Rajbhar and Ashok Rajbhar have been charge-sheeted under Sections 147, 148, 149,323, 504, 506, 427, 452, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment act, and Sections 3/25 Arms Act. Accused Ratilal has been charge-sheeted under Sections 147, 148, 149,323, 504, 506, 427, 452, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment act, and Sections 4/25 Arms Act whereas accused Pawan, Faiz Ahmad, Satiram, Vishal Rajbhar have been charge-sheeted under Sections 147, 148, 149,323, 504, 506, 427, 452, 302, 307, 34 I.P.C. and Section 7 Criminal Law Amendment act.
8. Learned counsel for applicant submits that though applicant is a named as well as charge-sheeted accused but he is innocent. He has been falsely implicated in afore-mentioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicant is being falsely prosecuted in afore-mentioned case crime number. It is then contended that the evidence on record does not support the prosecution story as unfolded in the F.I.R.. In the F.I.R. giving rise to present applicant for bail, no one has implicated the present applicant as the author of the fatal gun shot injury sustained by deceased Poonam. As such, an improvement has been made in the statement of first informant and eye witness Km. Asha Devi. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in custody since 14.05.2021. As such, he has undergone almost 10 months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. It is also contended that other named and charge-sheeted accused have already been enlarged on bail by this Court. However, it is apposite to mention her that bail orders of co-accused have not been appended with present bail application nor the copy of the same have been placed before this Court at the time of hearing. He lastly contended that since the charge-sheet has already been submitted against applicant therefore the evidence sought to be relied upon by the prosecution, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, he submits that applicant be enlarged on bail.
9. Per contra, the learned A.G.A. for State and and Miss. Bindu Rao, Advocate holding brief of Mrs. Pooja, the learned counsel for first informant have opposed the present application for bail. They jointly contends that applicant is not only a named accused but also a charge-sheeted accused. They further submits that as per the statement of first informant and the eye witness Asha Devi, author of the fatal gun shot injury sustained by deceased Poonam is present applicant. As such, applicant does not deserve any indulgence by this Court. On the aforesaid premise, they contend that present applicant for bail is liable to be rejected.
10. Having heard learned counsel for applicant, learned A.G.A. for State and upon consideration of evidence on record, accusations made as well as complicity of applicant but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail. As such, present application for bail is liable to be rejected.
11. Accordingly, present application for bail is hereby rejected.
Order Date :- 4.4.2022 "
7. Learned counsel for applicant submits that post mortem of the body of deceased is doubtful in view of the statements of witnesses examined during the course of trial. It is further contended that applicant is in jail since 14.05.2021. As such, he has undergone more than one year and nine months months of incarceration. The trial of concerned case crime number has not yet been concluded. On the above premise, learned counsel for applicant submits that applicant is liable to be enlarged on bail.
8. Per contra, the learned A.G.A. for State and the learned counsel for first informant/opposite party-2 have vehemently opposed the this repeat application for bail. They submits that applicant is the author of the fatal gun shot injury sustained by deceased, as per the statements of first informant and Kr. Asha, who are the eye witnesses of the occurrence. In view of above as well as the gravity of offence, the period of incarceration undergone by applicant is immaterial. Post mortem report cannot be examined at this stage by this Court. It can be examined only during the course of trial. They further submits that since no new or good ground has been made out to enlarge the applicant on bail, therefore, present application in fact is liable to be rejected.
9. When confronted with above, the learned counsel for applicant could not overcome the same.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant/opposite party-2, upon consideration of evidence on record, accusations made as well as complicity of applicants coupled with the fact that no new or good ground has been made out to enlarge the applicant on bail but without expressing any opinion on the merits of the case, present repeat application for bail is liable to be rejected.
11. Accordingly, this application for bail is rejected.
Order Date :- 2.3.2023 YK