Allahabad High Court
Dharmendra Kumar Yadav & Others vs State Of U.P. on 11 February, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 29 Case :- BAIL No. - 4787 of 2020 Applicant :- Dharmendra Kumar Yadav & Others Opposite Party :- State of U.P. Counsel for Applicant :- Mata Prasad Yadav,Ajay "Madhavan",Arvind K Verma Counsel for Opposite Party :- Shishir Pradhan Hon'ble Mohd. Faiz Alam Khan,J.
Heard the learned counsel for the accused/applicants, learned A.G.A. for the State as well as Shri Shishir Pradhan, learned counsel for the complainant/ informant and perused the record.
This bail application has been moved by the accused/applicants- Dharmendra Kumar Yadav, Anokhe Lal @ Phaddan, Arjun and Desh Raj for grant of bail, in Case Crime No.70/2020, under Sections 147, 148, 323, 504, 506, 304 IPC, Police Station Bado Sarai, District Barabanki, during trial.
Learned counsel for the accused-applicants while pressing the bail application submits that the accused-applicants have falsely been implicated in the instant case and they have not committed any offence as claimed by the prosecution.
It is further submitted that there is cross version of the incident, wherein the three persons from the side of the applicant, namely, Dharmendra, Rama Pati & Mishri Lal, have sustained injuries and pertaining to that FIR bearing Case Crime No. 71/2020, under Sections 147, 148, 323, 504, 506, 427 IPC was lodged against the informant party.
It is also submitted that in the instant FIR general role of assault with 'Kudal, Banka, Lathi & Danda' was attributed to the applicants, however, neither in the First Information Report nor in the statement of witnesses the injured witnesses had specified as to what weapon was being carried by a particular accused person and therefore, it could not be ascertained as to who is the author of the fatal injuries sustained on the head of the deceased.
It is further submitted that in the post mortem report of deceased, 3 lacerated wounds have been found on the head and the same may only be attributed to blunt object / weapon, like 'Lathi' but it has not been specified by any witness as to who amongst the applicants was carrying 'lathi'. Moreover no injury which may correspond to 'kudal or banka' has been found on the person of the deceased and injured persons.
It is next submitted that actually it was the informant' party who has started assault on the applicants' party and therefore they have exercised a right of private defence and who was the aggressor could only be decided after full trial.
It is further submitted that the applicants are in jail in this matter since 8.5.2020 and only one applicant i.e. Deshraj is alleged to have a criminal history of two criminal cases, however in one case he has been acquitted by the trial court and in other he has been granted bail by the competent court. Criminal history has been explained in the supplementary affidavit filed by the applicants.
Learned A.G.A. has, however, opposed the prayer for bail of the applicants on the ground that the applicants have committed heinous offence and therefore, they are not entitled to be released on bail but could not dispute the other factual submissions made by the learned counsel for the accused-applicants.
Shri Shishir Pradhan, learned counsel for the complainant/ informant submits that the crime has been committed by the applicants in furtherance of a well designed plan and in facts of the case are attracting Section 302 IPC, however, the Investigating Officer has not investigated the case in right perspective and submitted the charge sheet only under Section 304 IPC. It is further submitted by him that a day before the incident a quarrel had taken place and in pursuance of this quarrel commission of the offence has been done by the applicants on the next day.
Having heard submissions made by learned counsel for the parties and having perused the record, what I find is that there is a cross version of the incident. Three persons, namely, Dhrmendra, Rama Pati and Mishri Lal were also injured from the side of the applicants while three persons, from the side of the informant, namely, Subedar, Rajesh and Veeresh have sustained injuries. However the deceased Dinesh had received 3 lacerated wounds, which may be attributed to blunt weapon but neither in the FIR nor in the statements of the witnesses, including injured witnesses, it has been specified as to who amongst the applicants was carrying 'lathi' or other blunt weapon. No injury has been found either on the person of the deceased or the injured persons, which may correspond either to 'Kudal' or to 'Banka'. The applicants are in jail in this matter since 8.5.2020. Charge sheet in the mater has already been submitted. The two criminal cases alleged to be the criminal history of the applicant Deshraj has been explained in supplementary affidavit filed by the applicants.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicants have made out a case for bail. The bail application is thus allowed.
Let the applicants-Dharmendra Kumar Yadav, Anokhe Lal @ Phaddan, Arjun and Desh Raj involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicants shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicants shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.
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 applicants and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 11.2.2021 Muk