Allahabad High Court
Radhe Shyam ( Second Bail ) vs State Of U.P. on 15 December, 2020
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 16 Case :- BAIL No. - 8152 of 2018 Applicant :- Radhe Shyam ( Second Bail ) Opposite Party :- State of U.P. Counsel for Applicant :- Nripendra Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajesh Singh Chauhan,J.
Heard Sri Nripendra Mishra, learned counsel for the applicant and learned A.G.A. for the State.
This is second bail application as first bail application was dismissed for non-prosecution vide order dated 26.4.2018 by Hon. Rang Nath Pandey (since retired). Learned counsel has contended that the present applicant is in jail since 14.11.2012 in Case Crime No. 738 of 2012 u/s 147, 148,149,354,307,504,506,302 I.P.C. & 3(2)(V) SC.ST Act, P.S. Khairighat, District Bahraich.
Learned counsel for the petitioner has further contended that the present applicant has been falsely implicated as he has not committed any offence as alleged. The applicant is presently more than 78 years of age and is in jail for more than 8 years. He has further submitted that in the instant case there are total 8 accused persons including the applicant and all have been granted bail except the present applicant.
Learned counsel for the applicant has drawn attention of this Court towards some of bail orders i.e. bail order dated 3.8.2015 of Virendra in Bail No. 2179 of 2014, bail order dated 5.12.2013 of Smt. Sangeeta Devi in Bail No. 5632 of 2013, bail order dated 9.6.2014 of Bachchharaj in Bail No. 3273 of 2014 and bail order dated 8.9.2015 of Ram Gopal in Bail No. 5067 of 2015.
On account of prosecution story narrated in the F.I.R. some of the co-accused were having country made pistol, some wooden plank, one co-accused Niranjan was having Kulhadi (Axe), some accused persons were having Saria and the present applicant was having Fawda. All the accused persons inflicted injury upon the deceased resultant thereof the victim succumbed to said injuries. Annexure no. 4 disclosed the injuries. Injury no. 1 is an incised wound 14x1 cm. on the Rt. side of head posterior to the right ear (0.7 cm. back) and 0.6 cm below the middle obliquely vertical and trailing down ward. Depth is more in upper part while lower part is superficial underlying bone is cut up to the notables (spiral and temporal bone). Injury no. 2 is shown as 14 punctured wound present on the upper part of the chest, lower part of the right side of neck on upper arm and forearm (1 cm upper arm and on in the left forearm) 3 on the lower part of right side of neck are on right side of lip just lateral to (not legible) the wound are contused in periphery and probing going to different depth. Injury no. 3 is pellets surrounded from right chest cavity.
Learned counsel for the applicant has drawn attention of this Court towards the supplementary affidavit dated 30.4.2019 to show the statement of doctor concerned namely, Dr. O.P. Pandey, District Hospital, Siddharth Nagar, P.W. 3 wherein the doctor concerned has clearly indicated that the cause of death is injury no. 2. Therefore, learned counsel for the applicant has submitted that as per prosecution story the applicant has inflicted injury on the head of the victim not below the head, whereas the injury no. 2 indicates about those injuries which have been inflicted on the upper part of the chest, lower part of the chest and lower part of the neck etc. Learned counsel for the applicant has further submitted that this Court has granted bail to co-accused Ram Gopal and Niranjan who were having Kulhadi (Axe) and inflicted injury upon the victim by Kulhadi.
The present applicant being a very old and aged person of 78 years of age has been languishing in jail for more than 8 years is vulnerable person in a given circumstances of Covid-19, therefore, on the basis of contentions so raised, the learned counsel for the applicant has submitted that considering the fact that all the co-accused persons have been granted bail, even those co-accused who have inflicted injuries indicated in the injury report as injury no. 2 and the present applicant is being very old aged person languished in jail for more than 8 years may be granted bail. The learned counsel has given undertaking on behalf of applicant that the applicant shall not misuse the liberty of bail and shall cooperate with the trial proceedings and shall abide by all terms and conditions of bail, if granted.
Learned A.G.A. opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Without entering into the merits of the case and considering the aforesaid facts and circumstances, the applicant is entitled to be released on bail in this case.
Let the applicant Radhe Shyam, involved in aforesaid case crime be released on bail 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 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. 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 him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) 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 him in accordance with law.
Order Date :- 15.12.2020 Om [Rajesh Singh Chauhan, J.]