Allahabad High Court
Shyam Babu Rajbhar vs State Of U.P. on 15 December, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:238098 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41906 of 2023 Applicant :- Shyam Babu Rajbhar Opposite Party :- State of U.P. Counsel for Applicant :- Jai Prakash Singh,Raj Kiran Chaudhary Counsel for Opposite Party :- G.A.,Prashant Sharma Hon'ble Rajeev Misra,J.
1. Heard Mr. Jai Prakash Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Prashant Sharma, the learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by applicant Shyam Babu Rajbhar seeking his enlargement on bail in Case Crime No.393 of 2022, under Sections 147, 148, 149, 504, 506, 307, 302/34 I.P.C., and Section 7 Criminal Law Amendment Act, Police Station Sigra, District Varanasi during the pendency of trial.
4. . Record shows that in respect of an incident which is alleged to have occurred on 12.10.2022, a delayed F.I.R. dated 13.10.2022 was lodged by first informant Rudraesh Kumar Singh (son of the deceased) and was registered as Case Crime No.393 of 2022, under Sections 147, 148, 149, 504, 506, 307, 302/34 I.P.C., and Section 7 Criminal Law Amendment Act, Police Station Sigra, District Varuna (Commissionate) Varanasi. In the aforesaid F.I.R. as many as 17 persons namely: (1) Mantoo Singh (2) Rahul Saroj (3) Abhishek (4) Anoop Saroj (5) Dinesh Pal (6) Suresh Saroj (7) Ganesh (8) Aryan Saroj (9) Shayam Babu (10) Suraj (11) Vishal Rajbhar (12) Vikas Rajbhar (13) Manish Pandey (14) Pawan (15) Shahil (16) Sandeep Gupta and (17) Ramesh have been nominated as named accused whereas an unknown person has also been arraigned as an accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused armed with deadly weapon and with a common object and common intention formed an unlawful assembly and thereafter assaulted Raj Kumar Singh brother of the first informant, on account of which, he sustained injuries. Subsquenntly, Pashupati Nath Singh, father of the first informant/injured intervened to save his injured son but he too was also assaulted in which he sustained injuries on his person including his head. Ultimately, the father of the first informant Pashupati Nath Singh died.
6. After above-mentioned F.I.R. was lodged, Investigating Officer proceed with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. The inquest (Panchayatnama) of the body of deceased (Pashupati Nath Singh) was conducted. In the opinion of witnesses of inquest (Panch Witnesses) the nature of death of deceased was categorized as homicidal and the cause of death was said to be injury sustained by the deceased on his person. Thereafter, post mortem of the body of deceased was conducted. The autopsy surgeon who conducted autopsy of the body of deceased opined that the cause of death of deceased was coma as a result of ante-mortem head injury. The autopsy surgeon found following ante-mortem injuries on the body of deceased:
1. Countsed swelling over temporal partio 1 cm Xoccipital area of head lacerated and wound of size 1 x 4 x bone deep fracture from left ear 2 cm form middline on left side 2 & contused swelling of size 4 x 6 cm over occtiple of lacerated wound of size 6 X 1 X bone deep, 1 cm away from middle from left ear and 35 cm away from a labella on left side rt laceated over left maxillary area of face 2.5 X 1. bone deep, 8 cm lat to tip of away from 1t pinna, 2 cam away from angle of eye left side 47 lacerated wound of 1 X 0.5 cm over left midline cantuse of eye with black of left side swelling over left face of size .5 X 13 cm with fracture of let maxipion with scalp bone on opening scalp-contusion around head with fracture skull over occipital imporal pinna on left side and fraxture running fro left paritol to rt...
On injury skull subderal has... middile
7. During course of investigation, Investigating Officer examined the first informant and other witnesses namely:- Rudraesh (first informant), Rahul Gupta, subhash Singh Yadav, Harihar Singh, Vinod Kumar Maurya, Smt. Kiran Devi, Saurabh Singh and Siddharth Singh under Section 161 Cr.P.C. On the basis of above and other material collected by the Investigating Officer, he came to the conclusion that complicity of all the named accused is established in the crime in question.Accordingly, he submitted the charge-sheet dated 07.12.2022, whereby all the named accused charge sheeted under Sections 147, 148, 149, 504, 506, 307, 302/34 I.P.C., and Section 7 Criminal Law Amendment Act, Police Station Sigra, District Varanasi.
8. After above-mentioned charge sheet was submitted, cognizance was taken upon the same by the concerned Magistrate as offence complained of his triable explicitly by the court of Sessions. Resultantly, the concerned Magistrate committed the case to the Court of Sessions. Consequently, Session Trial No. 34 of 2023 (State Vs. Vikas Bharadawaj@ Vikas Rajbhar and others) came to be registered and now said to be pending in the Court of Special Judge, District Judge/Special Judge Court No.01 Varanasi. Upto this stage, two prosecutions witnesses of fact namely Rudhesh Singh (Son of first informant) PW-2 Raj Kumar Singh (Injured) have been examined.
9. At the very outset, the learned counsel for applicant submits that three of the named/charge sheeted accused namely Suraj Yadav, Vikas Bhardawaj and Abhishek have already enlarged on bail. The details of the same as under:-
10. Criminal Misc. Bail Application 5582 of 2023 (Suraj Yadav Vs. State of U.P.) was allowed vide order dated 09.08.2023. For ready reference same is extracted hereinunder:-
"Learned counsel for the applicant files supplementary affidavit today, taken on record.
Heard learned counsel for the applicant, learned counsel for the State, Sri Prashant Sharma, learned counsel for the informant and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Suraj Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 393 of 2022, under sections 147, 148, 149, 504, 506, 307, 302/34 IPC and section 7 of Crl. Law Amendment Act, P.S. Sigra, District Varanasi.
The submission advanced by learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. In the present case during trial the P.W. 1 who is daughter of the deceased has stated that she has not seen the applicant in committing the marpeet with her father and become hostile (Supplementary affidavit filed in support of the affidavit). Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It is further contended by learned counsel for the applicant that the applicant is languishing in jail since 13.10.2022 having no criminal history.
Per contra, learned AGA for the State has opposed the prayer for bail but admitted the fact that P.W. 1 who is daughter of the deceased has not stated the presence of the applicant and become hostile.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Suraj Yadav, be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
(ii) The 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) The applicant shall file an undertaking to the effect that he 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.
(V) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
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 and send the applicant to prison.
The bail application is allowed."
11. Criminal Misc. Bail Application 25756 of 2023 (Abhishek Vs. State of U.P.) was allowed vide order dated 04.10.2023. For ready reference same is extracted hereinunder:-
"1. ??????? ??????? ???????? ????? ????????? ????, ????? ?????? ?? ?? ?? ??????? 393/2022, ???????? ???? 147/ 148/149/504/506/307/302/ 34 ????????? ??? ???? 7 ???????? ?? ???. ????, ???? ????? ???? ??????? ??? ????? ?? ????? ???? ???? ???????? ???? ??? ???
2. ??????? ?? ??????? ???????? ?? ??????????? ?? ????? ??????? ????
3. ????? ?? ??????? ????????, ??? ??????? ??? ?????? ???????? ?? ???? ??? ???????? ?? ??????? ?????
4. ????? ?? ??????? ???????? ?? ???? ???????? ???? ?? ??????? ?? ?? ?????? ??? ??? ??? ????? ??? ?? ???? ?????? ??? ??, ???? ???? ????? ????? ???? ???? ??? ?? ?????? ??? ?? ???????? ???? ???? ?? ?????, ????? ????? ???? ??. 5589 ?? 2023 ??? ?? ???????? ?? ???? ???????? ?? ???? ??. 09.08.2023 ?????? ??????? ?? ?? ???? ?? ????? ?? ??? ?? ???? ?????????? ?? ???? ??, ????? ????? ?? ?? ???????? ?? ?????? ?? ???? ?? ????? ???? ?? ??????? ??? ????? ??????? ?? ??? ?? ?? ?????? ??? ??? 13.10.2022 ?? ??????? ??? ??????? ?? ????? ????? ?? ????? ?? ???? ???? ????
5. ??????? ??? ?????? ???????? ?? ????? ?? ??????? ???????? ?? ????? ?? ????? ????? ???? ??? ???? ???????? ???? ?? ????? ?????? ????? ????? ??????? ??? ??????? ??????? ?? ??, ????? ????? ?? ????? ?? ? ????? ?????
6. ????? ?? ??????? ???????? ?? ?????? ?? ???????????? ??? ???????? ?? ?????? ?????? ?????? ??? ???????????? ?? ????? ??? ?? ?????? ???? ?? ???, ?????? ?? ??????? ?? ???? ?? ??? ?????????? ??????? ?? ?????????? ??? ?????? ??????? ?? ???????? ?? ??????? ? ???? ?? ???? ?? ????? ??? ???? ??? ??? ????? ?? ????? ?? ????? ???? ? ??????? ???? ???
7. ??? ??? ?? ??? ??? ?? ???? ??? ??????? ??? ??? ??????? ?? ??????? ?????? ????? ??? ??????? ???????? ?? ????????? ?? ????????? ???-???? ??? ???? ?????? ?? ? ??????? ??????? ???????? ???? ?? ?????????? ?????? ?? ??? ????? ?? ???? ???? ????
1. ????? ??????? ?? ??????? ?? ????? ??????? ????????? ?? ??? ???????? ?? ??????
2. ????? ??????? ????????? ? ??????? / ??????????? ?? ???????/??????? ?????
3. ????? ???????? ?? ?????? ?? ???? ?????, ?? ??????? ?? ????? ???? ??? ???????? ????? ??? ???? ???? ?? ???????? ??? ??????? ???? ??? ??????? ??? ???????? ?? ????? ??????
4. ????? ????? ?? ???? ???? ?? ??? ????? ?? ?????????? ?? ???????? ??? ????? ?? ???? ?? ??????? ??????? ??? ????? ???? ???? ? ??? ??????? ????? ??????
5. ????? ????????? ?? ?????????? ??? ?? ????? ?? ?????? ?? ?????? ???? ?? ??????? ?? ????? ?????????? ?? ??? ??????? ?? ???? ???? ???? ? ?? ???? ??? ????? ?????, ????? ???? ?????? ???????? ??? ?????? ?? ????? ???? ?? ???? ???? ?????
??????? ?????? ??? ?? ???? ?? ??????? ?? ????? ???, ??????? ???????? ????? ?? ????? ?????????? ???? ???? ?? ???????? ???"
12. Criminal Misc. Bail Application 43121 of 2023 (Vikas Rajbhar @ Bhardwaj Vs. State of U.P.) was allowed vide order dated 18.10.2023. For ready reference same is extracted hereinunder:-
"By means of the the bail application the applicant has prayed to be enlarged on bail in Case Crime No. 393 of 2022 at Police Station- Sigra, District- Varanasi, under Sections 147, 148, 149, 504, 506, 307, 302, 34 IPC and Section 7 Criminal Law Amendment Act. The applicant is in jail since 18.11.2022.
The bail application of the applicant was rejected by the learned trial court on 06.12.2022.
The following arguments made by Ms. Swati Agrawal Srivastava, learned counsel assisted by Ms. Mehzabi, learned counsel on behalf of the applicant, which could not be satisfactorily refuted by Shri Surendra Pratap Singh, learned counsel holding brief of Shri Prashant Sharma, learned counsel on behalf of the informant and Shri Suchit Tandon learned AGA from the record, entitle the applicant for grant of bail:
1. FIR assigns a vague and general role to the applicant in the incident.
2. The applicant was falsely nominated on account of a village rivalry.
3. The applicant has not been identified by the two eye witnesses in their testimonies before the trial court as the principal offender who inflicted the fatal injuries to the deceased.
4. The role of the applicant is distinguishable from the principal offenders who inflicted fatal injuries on the person of the deceased and have been so identified by the injured persons.
5. The applicant claims congruency in role and seeks parity in relief granted to the co-accused persons Suraj Yadav and Abhishek who have been enlarged on bail by this Court by orders dated 09.08.2023 in Criminal Misc. Bail Application No. 5589 of 2023 and 04.10.2023 in Criminal Misc. Bail Application No. 25756 of 2023 respectively.
6. The applicant has explained his criminal history. It is also contended that the applicant is a convenient scapegoat for the police authorities. The applicant has been falsely nominated in a number of cases only to show the proficiency of the police investigators. The said cases do not have any bearing on the instant bail application.
7. The applicant is not a flight risk. The applicant being a law abiding citizen has always cooperated with the investigation and undertakes to join the trial proceedings. There is no possibility of his influencing witnesses, tampering with the evidence or reoffending.
In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed.
Let the applicant- Vikas Rajbhar @ Bhardwaj 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 below. The following conditions be imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence or influence any witness during the trial.
(ii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted."
13. However, the bail application of two of the named and charge sheet accused namely Anoop Saroj, Mantoo Saroj has been rejected by this Court. The details of the same are as under:-
14. Criminal Misc. Bail Application 6882 of 2023 (Mantu Saroj Vs. State of U.P.) was rejected vide order dated 14.02.2023. For ready reference same is extracted hereinunder:-
"1. List has been revised.
2. Heard Sri Firdosh Ahmad, learned Advocate holding brief for Sri Sanjeeva Kumar Yadava, learned counsel for the applicant, Sri Srikant Tiwari, learned Advocate holding brief for Sri Prashant Sharma, learned counsel for the first informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the material placed on record.
3. Applicant seeks bail in Case Crime No. 393 of 2022, U/S 147, 148, 149, 504, 506, 307, 302/34 IPC and under Section 7 of Criminal Law Amendment Act, Police Station Sigra, District Varuna Commissionerate, Varanasi, during the pendency of trial.
4. As per prosecution story, the applicant and co-accused Rahul Saroj, who are stated to be the head of the gang, are stated to have come to the liquor shop of the informant and after consuming some liquor, are stated to have hurled abuses at the brother of the informant. After being asked to refrain from doing so, the applicant and the named accused persons alongwith twenty persons in all, are stated to have come to the shop again on 12.10.2022 at about 7.20 pm and started beating the brother of the informant Raj Kumar Singh by lathis, rods and danda with the common object to put him to death. On the intervention of his father Pashupati Nath Singh, the applicant and other co-accused persons are stated to have inflicted injuries to him also thereby injuring both the persons causing the death of the father of the informant Pashupati Nath Singh.
5. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel has stated that there is no recovery from the applicant. The recovery has been made from both Vishal Gupta @ Sahil and Aryan Saroj @ Tamatar. Learned counsel has next stated that the applicant is a national football player. Learned counsel has next stated that the applicant has strong alibi as he was working at Gas Agency. To buttress his arguments, learned counsel has next submitted that the CCTV footage fetched by the prosecution are not clear. Learned counsel has also submitted that there are general allegations against all the accused persons. No specific role has been assigned to them.
6. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 13.10.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
7. Per contra, learned A.G.A. and learned counsel for the first informant have vehemently opposed the bail application on the ground that the applicant is the main accused person as it was he, who had an altercation with the brother of the informant namely, Raj Kumar Singh and due to the ire, he is stated to have come back with the other accused persons and has even assaulted the father and son both. Learned counsel has next stated that there is CCTV footage of the shop in which also, the applicant is seen at the place of occurrence.
8. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, pending trial, considering the complicity of accused, severity of punishment and taking into consideration the CCTV footage of the place of occurrence, and the statement of the injured person Raj Kumar Singh, at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.
9. The bail application is, accordingly, rejected.
10. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.
11. 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."
15. Criminal Misc. Bail Application 6749 of 2023 (Anoop Saroj Vs. State of U.P.) was rejected vide order dated 14.02.2023. For ready reference same is extracted hereinunder:-
"1. Counter affidavit filed today on behalf of the informant is taken on record.
2. Heard Mrs. Swati Agarwal Srivastava, learned counsel for the applicant, Sri Anil Kumar Mehrotra, learned counsel for the informant and Sri Suresh Bahadur Singh, learned AGA for the State.
3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 393 of 2022, under Sections 147, 148, 149, 504, 506, 307, 302/34 IPC and Section 7 Criminal Law Amendment Act, Police Station Sigra, District Varuna Commissionerate, Varanasi during pendency of the trial.
4. FIR of the present case was lodged on 13.10.2022 at 05.05 hours and according to the FIR on 12.10.2022 at about 7.20 PM in the evening 307 Gang leaders Mantu Saroj and Rahul Saroj along with his two associates after consuming liquor were using abusive language and when brother of the informant namely Raj Kumar Singh objected then they threatened him and returned back but again above noted four persons came along with 15-20 persons armed with iron rods and wooden sticks and co-accused Mantu Saroj, Rahul Saroj and Abhishek exhorted their associates and made assault due to which the brother of the informant namely Raj Kumar Singh sustained serious injuries. It is further mentioned in the FIR that after hearing noises father of the informant arrived at spot and tried to save Raj Kumar Singh but accused persons made assault on his head with iron rod due to which he fell down and fainted and thereafter assailants went away.
5. It is further mentioned in the FIR that informant, Siddharth Singh and Saurabh Singh witnessed the incident in electric light and identified the assailants and they took the injured persons to Singh Medical College from where injured persons were referred to Trauma Centre BHU where the father of the informant was declared dead and his brother namely Raj Kumar Singh is under treatment.
6. It is further mentioned in the FIR that when the brother of the informant namely Raj Kumar Singh gained consciousness then he disclosed the name of other accused persons including applicant, who were total 17 in number along with one unknown person.
7. Learned counsel for the applicant submitted that entire allegation made against the applicant is totally false and baseless and applicant neither participated in the incident nor he ever caused any injury to either injured or the deceased. She further submits that from perusal of the FIR, it appears that it was lodged on 13.10.2022 i.e. next day from the date of incident and record further suggests that the inquest report of deceased was prepared on 12.10.2022 at about 23 hours on the information sent by Trauma Centre BHU and thereafter in the night i.e. on 13.10.2022 at about 3.00 AM post mortem of the deceased was conducted, therefore, after the inquest report and post mortem FIR of the present case was lodged and this fact clearly suggests that FIR of the present case was lodged after due consultation and this fact clearly indicates that only with intention to implicate the entire family and community of principal accused Mantu Saroj FIR was lodged so belatedly.
8. She next submits although Raj Kumar Singh, the brother of the informant claimed himself as injured but his medical report suggests that he did not sustain any serious injuries and from perusal of his injury report, which has been annexed as Annexure-2 to the affidavit filed in support of present bail application, it appears that he was having complaint on head and joint and was having laceration 02 x 02 cm on left side of forehead and was also having Parenteral oedema and cut injury and except this he did not sustain any other injury and this fact clearly suggests that entire allegation made against applicant and other accused persons is totally false and baseless as if about 18 persons armed with iron rod and wooden sticks made assault then a person would not have sustained such minor injuries. She further submits that the alleged injured Raj Kumar Singh appears to have been sustained these injuries in some other manner and he did not witness the incident in which his father i.e. deceased of the present case lost his life.
9. She further submits that even from the FIR and statements of witnesses including the statements of informant and injured Raj Kumar Singh and two other eye witnesses namely Siddharth Singh and Saurabh Singh it appears that they arrived at spot after hearing the noises and further informant in the FIR disclosed the name of applicant on the information given by his brother, the alleged injured Raj Kumar Singh and all these facts clearly suggests that actually informant and two other witnesses i.e. Siddharth Singh and Saurabh Singh were also not present at spot.
10. She further submits that the incident is said to have taken place in the liquor shop and during the incident the salesmen were also present in the shop but Investigating Officer could not record their statements immediately and could record their statements only on 11.11.2022 in Parcha No. 24 of the case diary i.e. after almost about a month and this fact further suggests that actually incident did not occur at the alleged place and time. She further submits that even from the perusal of the statement of salesmen Yadvendra Yadav and Ajay Kumar Gaur recorded during investigation it appears that they did not disclose the name of applicant. Learned counsel for the applicant further submits that on same day i.e. on 11.11.2022 Investigating Officer recorded the statements of nearby shop owners and although they along with other co-accused persons disclosed the name of applicant but as their statements were recorded quite belatedly i.e. almost after about a month, therefore, it appears that they were planted witnesses and they in fact did not witness the real incident.
11. She further submits that it is alleged that after the incident on 13.10.2022 police recovered the CCTV Footage from the liquor shop and after perusing the footage co-accused Babu Saroj @ Anuj was made accused during investigation and in the CCTV footage presence of applicant is not visible. She further submits that from the perusal of the post mortem report of the deceased, it appears that although he sustained five injuries but he died due to coma as a result of head injury and post mortem report of the deceased also belies the prosecution case as if about 18 persons would have made attack over the deceased then he must have sustain more injuries than noted by the doctor during post mortem and further although deceased died due to head injury but there is no evidence on record, which can show that applicant is the author of the head injury sustained by the deceased.
12. Learned counsel for the applicant further submits that applicant is not having any previous criminal history and as applicant side contested election of Parshad against the informant side, therefore, only due to this reason they have been falsely implicated in the present matter. She further submits that no recovery of any weapon could be made either on the pointing out of the applicant or from his possession. She next urged as applicant is father of principal accused Mantu Saroj and Rahul Saroj, therefore, only due to this reason he has been implicated in the present matter.
13. Learned counsel for the applicant further submits although bail application of co-accused Mantu Saroj has been dismissed by the co-ordinate Bench of this Court on 14.02.2023 passed in Criminal Misc. Bail Application No. 688 of 2023 but law is settled that there is no parity of bail rejection. She further submits that the case of applicant is even distinguishable from the case of Mantu Saroj as he was the principal accused and was also alleged to have been one of the gang leader.
14. Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicant is active member of 307 Gang and he along with other accused persons participated in the incident and due to the assault made by him and other accused persons one person lost his life and one sustained injuries. They further submits that injured Raj Kumar Singh was firstly taken to Singh Medical College from where he was referred to Trauma Center BHU and on 12.10.2022 at about 8.47 PM he was admitted in Trauma Center and next day he could be discharged, therefore, it cannot be said that he sustained minor and superficial injuries and considering the medical report of the injured his presence at spot cannot be doubted.
15. Learned counsel for the informant further submits that as immediately after the incident informant and other family members rushed to the hospital along with injured persons and thereafter injured were referred to Trauma Centre BHU where father of informant was declared dead and after the death of deceased when information was sent by Trauma Centre BHU to concerned police station then inquest proceeding was commenced and thereafter post mortem of the deceased was conducted, therefore, it cannot be said that after due consultation intentionally FIR of the present case was lodged belatedly.
16. Learned counsel for the informant as well as learned AGA further submits that the incident took place in the wine shop, which was situated in the premises of the informant, therefore, the presence of salesmen and family members of the informant was quite natural and informant, injured Raj Kumar Singh, Siddharth Singh and Saurabh Singh, who were eye witnesses of the incident clearly stated that applicant also participated in the incident. They further submits that post mortem report also suggests that number of persons involved in commission of instant crime and there is no material available on record on the basis of which presence of applicant at spot can be doubted.
17. Learned counsel for the informant further submits that the bail application of co-accused Mantu Saroj, the son of the applicant has been dismissed by the co-ordinate Bench of this Court vide order dated 14.02.2023 and the case of applicant is not distinguishable from co-accused Mantu Saroj as there is allegation against both the persons that they along with their associates made assault.
18. Learned counsel for the informant further submits that applicant and other accused persons have made a Gang with the name of 307 and considering the facts and circumstances of the case, nature of allegation and evidence collected during investigation applicant should not be released on bail.
19. I have heard learned counsel for the parties and perused the record of the case.
20. From the perusal of the record it reflects that in the alleged incident a 71 years old person lost his life and one person i.e. his son sustained injuries. Applicant is named in the FIR along with 16 others and informant in the FIR clearly stated that injured Raj Kumar Singh disclosed the name of applicant along with number of other accused persons and from the statement of injured Raj Kumar Singh also it appears that applicant also participated in the crime along with other accused persons. Although, FIR of the present case was lodged next day but as after the incident both the injured were immediately taken to the hospital where one injured was declared dead, therefore, under the facts and circumstances of the case it cannot be said that FIR is either delayed or ante timed.
21. From the perusal of the record, it further reflects that during investigation, Investigation Officer recorded statements of number of witnesses and they disclosed the name of applicant and although their statements were recorded after about 28 days but at this stage merely on delay in recording their statements by the Investigating Officer their statements cannot be discarded.
22. Further, from CCTV footage of the incident it also reflects that incident occurred at the alleged place of incident and number of persons are visible in the footage and even if Investigating Officer during investigation did not note the name of the applicant after perusing the footage then also no benefit can extended to the applicant at this stage.
23. Further, the bail application of co-accused Mantu Saroj has been dismissed by the co-ordinate Bench of this Court after considering the entire facts and circumstances of the case including the statement of injured Raj Kumar Singh, CCTV footage. The allegation made against the applicant was also that he along with co-accused Mantu Saroj and his other associates made assault. Although, parity of bail rejection order cannot be claimed but it is one of the fact that bail application of one of the similarly placed co-accused person has been dismissed by the co-ordinate Bench of this Court.
24. Learned counsel for the applicant could not place any material on the basis of which at this stage it can be inferred that applicant was not present at spot and has been falsely implicated in the present matter.
25. Therefore, from the discussion made above, in my view, applicant is not entitled to be released on bail.
26. Accordingly, the instant bail application is rejected."
16. On the above conspectus, the learned counsel for applicant contends that the case of present applicant is similar and identical to named and charge sheeted co-accused Suraj Yadav, two witnesses who have been examined upto this stage have not implicated the present applicant for committing assault upon the deceased. The case of present applicant is similar and identical to that of named/charge sheeted but bailed out co-accused Suraj Yadav. He therefore contends that in view of above and for the facts and reasons recorded in the bail orders of co-accused referred to above, applicant is also liable to be enlarged on bail on the ground of parity.
17. 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 14.11.2022. As such he has undergone more than one years of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore, contends 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.
18. Per contra, the learned A.G.A and the learned counsel representing first informant have vehemently opposed opposed the prayer for bail. They submit that since applicant is named/charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The criminality committed by the applicant is joint and common. As such the same is incapable of being separated or segregated. As such, no exception can be carved out in the case of applicant. It is thus contended that no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of present application for bail with reference to the record at this stage.
19. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, complicity of applicant, gravity and nature of offence and accusation made coupled with the fact that the the case of the present applicant is similar and identical to the aforementioned charge sheeted co-accused Suraj Yadav, there is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from the named and charge sheeted but bailed out co-accused Suraj Yadav so as to deny him bail, therefore, in view of above and for the facts and reasons recorded in the bail orders of aforementioned co-accused Suraj Yadav, applicant is also liable to be enlarged on bail on the ground of parity, the clean antecedents of applicant, the period of incarceration undergone, the police report under Section 173 (2) Cr.P.C i.e. charge-sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, the applicant has made out a case for bail.
20. Accordingly, the bail application is allowed.
21. Let the applicant- Shyam Babu Rajbhar be released on bail in 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.
22. 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 :- 15.12.2023 Imtiyaz