Allahabad High Court
Chhotu @ Shivpujan And Another vs State Of U.P. on 1 March, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44314 of 2022 Applicant :- Chhotu @ Shivpujan And Another Opposite Party :- State of U.P. Counsel for Applicant :- Dharm Singh Parmar,Mukhtar Alam Counsel for Opposite Party :- G.A.,Jitendra Singh Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants, learned Additional Government Advocate representing the State and Mr. Jitendra Singh, learned counsel appearing on behalf of the first informant.
By means of this application under Section 439 of Cr.P.C., applicants- Chhotu @ Shivpujan and Virendra, who are involved in Case Crime No. 403 of 2019, under Sections 302/34 IPC, Police Station Maudaha, District Hamirpur seeks enlargement on bail during the pendency of trial.
As per prosecution case, in brief, the informant, who is the father of the deceased, lodged a first information report on 09.10.2019 against Ramayan Pal alias Binda Prasad, applicant no. 1-Chhotu alias Shiv Pujan, applicant no. 2-Virendra, Mahesh and Rajju Pal with the allegations inter-alia that a dispute took place between Veeru Pal, son of the informant and Mahesh, son of Ramayan alias Binda Prasad over bursting of crackers, which was propitiated by the informant's wife. After some time, Ramayan Pal alias Binda Prasad, Chhotu alias Shiv Pujan, Virendra, Mahesh and Rajju Pal armed with lathi and danda came there and by abusing his son, asked about his whereabouts. On being told that he is not at home, all the aforementioned accused left the place extending threats that in the morning, you will not get your son alive. Being apprehensive of untoward incident, the informant started search of his son, but in vain. However in the night at about 2.00 AM, when the first informant along with his brothers Ashok and Lallu Ram returned home, he saw that accused Ramayan Pal alias Binda Prasad was getting his son hanged from the tree, whereas Chhotu, Virendra, Rajju and Mahesh were standing under the tree and were saying that Veeru Pal (deceased) is dead.
Referring to the latter part of the statement of the first informant under Section 161 Cr.P.C. wherein he has stated that at about 10.00 PM, he went to his field and when he returned at 1.30 AM, he found the dead body of his son hanging from tree, learned counsel for the applicants contended that there is no eyewitness of the incident and the applicants have been falsely roped in the present case.
It is contended by the learned counsel for the applicants that in the inquest report as well as in the postmortem examination report of the deceased, except ligature mark around the neck, no other injury was found on the body of the deceased and as per opinion of the doctors, who conducted postmortem examination on the cadaver of the deceased, the deceased died as a result of asphyxia due to ante-mortem hanging. Learned counsel for the applicants has also referred to the statements of witnesses namely Shyam Babu, Ram Bali and Ram Pal wherein they have stated that the deceased was not murdered by any one, but he committed suicide by hanging. It is also pointed out that after culmination of investigation charge sheet was submitted against the applicants under Section 306, 504 and 506 I.P.C. only in which the applicants were granted bail by the learned Sessions Judge, Hamirpur. However, at the time of framing of charge, the applicants have moved a discharge application, which was rejected and learned Trial Court framed the charges against the applicants under Section 302 read with Section 34 IPC instead of Section 306 IPC and the applicants were taken into custody. Thereafter, the applicants moved a bail application under Sections 302/34 IPC, which was rejected by the Trial Court.
It is argued by the learned counsel for the applicants that earlier after getting bail, the applicants did not misuse the liberty of bail and extended their full cooperation with the trial. It is submitted by the learned counsel for the applicants that there is no chance of the applicants fleeing away from the judicial process or tampering with the prosecution evidence. The case of the applicants are distinguishable from that of co-accused Ramayan Pal alias Binda Prasad, whose bail application has been rejected by the Coordinate Bench of this Court vide order dated 13.1.2023. It is also pointed out that identically situated co-accused Rajju Pal @ Yogendra Kumar has been granted bail by this Court vide order dated 16.02.2023 in Criminal Misc. Bail Application No. 44272 of 2022. The applicants are languishing in jail since 06.07.2022 and in case, they are released on bail, they will not misuse the liberty of bail and cooperate with the trial.
Per contra, learned Additional Government Advocate representing the State as well as learned counsel for the informant opposed the prayer for bail of the applicants by contending that the accused persons, in collusion with each other, committed the murder of the deceased and thereafter he was hanged. However, they could not dispute that except the ligature mark, no other injury was found on the body of the deceased. Much stress has been given by contending that the investigating officer has not conducted fair investigation, therefore, charges have been framed under Section 302 read with Section 34 IPC in place of Section 306 IPC.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that there is no eyewitness of the incident and that except ligature mark around the neck, no other injury was found on the body of the deceased. I also find that independent witnesses namely Shyam Babu, Ram Bali and Ram Pal have stated that the deceased was not murdered by the applicants. Further the case of the applicants were distinguishable from that of co-accused Ramayan Pal alias Binda Prasad as he was assigned the role of hanging the deceased from the tree whereas the role of the applicants are only of standing under the tree. Co-accused Rajju Pal @ Yogendra Kumar, under similar circumstances, has been granted bail as noted above.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, this Court is of the opinion that the applicants have made out a case for bail. Hence, the bail application is hereby allowed.
Let the applicants-Chhotu @ Shivpujan and Virendra, 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) That the applicants shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicants shall not directly or indirectly make any 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 to any police officer or tamper with the evidence.
(iii) That after their release, the applicants shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicants.
In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicants.
It is clarified that anything observed in this order is limited to the extent of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence to be adduced uninfluenced by anything mentioned in the order.
Order Date :- 1.3.2023 Saurabh