Allahabad High Court
Shivbalak Yadav Alias Pintu Yadav vs State Of U.P. on 17 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13374 of 2023 Applicant :- Shivbalak Yadav Alias Pintu Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Prakash Chandra Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This is repeat application for bail has been filed by applicant-Shivbalak Yadav Alias Pintu Yadav seeking his enlargement on bail in Case Crime No. 200 of 2021 under Sections 302 and 307 I.P.C. Police Station-Mohammadabad, District-Mau, during pendency of trial i.e. Sessions Trial No. 223 of 2021 (State Vs. Ramparmeshwar @ Ram Khilawan and others) under Sections under Sections 302 and 307 I.P.C. Police Station-Mohammadabad, District-Mau now pending in the Court of Additional Sessions Judge, Court No.1, Mau.
4. First bail application of applicant alongwith bail applications of other co-accused was rejected by this Court by a detailed order dated 12.04.2022. For ready reference, the same is reproduced herein-under:
"Court No. - 66Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37989 of 2021 Applicant :- Ramparmeshawar Yadav @ Ram Singh Opposite Party :- State of U.P. Counsel for Applicant :- Subhash Chandra Yadav,Dharmendra Kumar Singh,Vijay Laxmi Counsel for Opposite Party :- G.A.,Manoj Kumar Chandel Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46069 of 2021 Applicant :- Shiv Balak Yadav @ Pintu Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Dharmendra Kumar Singh Counsel for Opposite Party :- G.A.,Manoj Kumar Chandel Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35970 of 2021 Applicant :- Anand Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Ram Chandra Yadav Counsel for Opposite Party :- G.A.,Manoj Kumar Chandel Hon'ble Rajeev Misra,J.
1. Heard Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel assisted by Mr. Subhash Chandra Yadav, the learned counsel for applicants- Ramparmeshwar Yadav @ Ram Singh and Shiv Balak Yadav @ Pintu Yadav, Mr. Ram Chandra Yadav, the learned counsel for applicant- Anand Yadav, the learned A.G.A. for State and Mr. Manoj Kumar Chandel, the learned counsel for first informant.
2. Perused the record.
3. These applications for bail have been filed by applicants- Ramparmeshwar Yadav @ Ram Singh, Shiv Balak Yadav @ Pintu Yadav and Anand Yadav seeking their enlargement on bail in connection with Case Crime No.200 of 2021, under Sections- 302, 307 I.P.C., Police Station- Muhammadabad, District- Mau, during pendency of trial.
4. Criminal Misc. Bail Application No.37989 of 2021 (Ram Parmeshwar Yadav @ Ram Singh Vs. State of U.P.) came up for orders on 30.03.2022 and this Court passed following order:-
"Heard Mr. Dharmendra Kumar Singh, learned counsel for applicant, learned A.G.A. for State and Mr. Manoj Kumar Chandel, learned counsel for first informant.
At the very outset, learned A.G.A. contends that Crl. Misc. Bail Application No. 35970 of 2021 (Anand Yadav Vs. State of U.P.) and Crl. Misc. Bail Application No. 46069 of 2021 (Shiv Balak Yadav @ Pintu Yadav Vs. State of U.P.) filed by co-accused are already pending before this Court.
In view of above, connect afore-mentioned bail applications along with this bail application.
Matter shall re-appear as fresh on 12.4.2022 along with connected matters."
5. Pursuant to above order dated 30.03.2022, afore-mentioned bail applications stood connected and have now been listed together. As aforementioned bail applications arise out of same case crime number, they have been heard together and are now being disposed of finally by a common order.
6. Record shows that in respect of an incident, which is alleged to have occurred on 02.05.2021, a prompt F.I.R. dated 02.05.2021 was lodged by first informant- Prakash Yadav (father of the deceased) and was registered as Case Crime No.200 of 2021, under Sections- 302, 307 I.P.C., Police Station- Muhammadabad, District- Mau. In the aforesaid F.I.R., three persons, namely, Ram Singh Yadav, Shiv Balak Yadav @ Pintu Yadav and Anand Yadav have been nominated as named accused.
7. The gravamen of the allegations made in the F.I.R. is that on 02.05.2021, Abhishekh Yadav son of first informant, aged about 24 years, was at his home. A phone call came on the mobile phone of the son of first informant i.e. mobile no. 8173854857. After receiving aforesaid phone call, son of first informant went out saying that some person has called. Son of first informant reached the house of Ram Kunwar Yadav, where a bride-groom procession (Barat) had come. At this place, in a pre-planned manner, Ram Singh Yadav caught hold of the son of first informant from behind and thereafter Shiv Balak Yadav @ Pintu and Anand Yadav assaulted the son of first informant with a knife, on account of which, he sustained various injuries. At this juncture, younger son of first informant, Hari Om Yadav rushed to save his brother and an attempt was also made upon his life by named accused. Persons from the vicinity collected and therefore, accused persons ran away from the spot. Injured was taken to hospital, where the doctors declared him dead.
8. After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. The inquest (panchayatnama) of the body of deceased was conducted on the information of first informant himself on the next date i.e. 03.05.2021. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was homicidal. Subsequent to above, post-mortem of the body of deceased was conducted on the same day. In the opinion of Autopsy Surgeon, the cause of death of deceased was hemorrhage shock due to ante-mortem sharp injury.
9. The Autopsy Surgeon found following ante-mortem injuries on the body of the deceased.
1. Sharp injury present 6 x 3 cm in deep muscle 7.5 cm back neck in rt. side base of shoulder joint.
2. Sharp injury 2 x 2 cm present below 7 cm left shoulder (left arm).
3. Sharp injury 2 x 2 cm present in left arm 6.5 cm below 2nd injury.
4. Sharp injury 8 x 3.5 cm present anterior aspect of left arm 4 cm below, 3rd injury (injury is bone deep).
5. Sharp injury 2 x 1 cm present below 1 cm left nipple.
6. Sharp injury 2 x 1.5 cm present 4 cm below umbilicus deep muscle & ruptured intestine (about 500 ml blood present).
7. Sharp injury 3 x 2 cm present in 15 cm above left knee joint anterior side.
8. Sharp injury 3 x 1.5 cm present in 7 cm above rt. knee joint in antero-medial side.
10. During the course of investigation, Investigating Officer examined the following witnesses under section 161 Cr.P.C. Prakash Yadav (first informant), Hari Om Yadav and Vinod Yadav (Eye-witnesses of the occurrence), Alankar Yadav and Lallan Yadav.
11. Witnesses so examined by Investigating Officer supported the prosecution story as unfolded in the F.I.R. On the basis of above, as well as other material collected by Investigating Officer during the course of investigation, he opined that the complicity of named accused is established in the crime in question. Accordingly, Investigating Officer submitted the charge-sheet dated 14.06.2021, whereby all the three named accused have been charge-sheeted under sections 302, 307 I.P.C.
12. Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Mr. Subhash Chandra Yadav, learned counsel for applicants- Ramparmeshwar Yadav @ Ram Singh and Shiv Balak Yadav @ Pintu Yadav submits that though applicants are named as well as charge-sheeted accused, but they innocent. Applicants have been falsely implicated in aforementioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in concerned case crime number.
13. Mr. Gopal Swaroop Chaturvedi, learned Senior Counsel for applicants- Ramparmeshwar Yadav @ Ram Singh and Shiv Balak Yadav @ Pintu Yadav has invited the attention of Court to the site plan prepared by the Investigating Officer. Copy of same is on record at page-37 of the paper book pertaining to the bail application of applicant- Ram Parmeshwar Yadav @ Ram Singh. With reference to above, he has then taken the Court to the post-mortem report of the deceased and has laid much emphasis on the recital contained at page-31 of the paper book. According to the learned Senior Counsel, the large blood vessels of the deceased have sustained cuts, which are through and through. On the aforesaid premise, he contends that occurrence is alleged to have taken place at point-A mentioned in the site plan, but the dead body of the deceased was found at point-B. The distance in between point-A and point-B is 75 steps. Referring to the nature of the injury sustained by the deceased as noted above, he contends that deceased could not have covered the distances of 75 paces. It is thus urged that the occurrence has not taken place as sought to be alleged by the prosecution. Once the place of occurrence is doubtful, the entire prosecution case becomes doubtful and, therefore, applicants are liable to be enlarged on bail.
14. Learned Senior Counsel further submits that no recovery of earth mixed with blood has been made by the Investigating Officer from the alleged place of occurrence i.e. point-A mentioned in the site plan.
15. It is then contended that applicant- Ram Parmeshwar Yadav and Shiv Balak Yadav are men of clean antecedents, inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 10.05.2021 and 09.05.2021 respectively. Resultantly, they have undergone more than 11 months of incarceration. As such, applicants are liable to be enlarged on bail. In case, applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
16. Mr. Ram Chandra Yadav, learned counsel for applicant- Anand Yadav has adopted the arguments urged by learned Senior Counsel. He contends that applicant- Anand Yadav is also a man of clean antecedents, inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 09.05.2021. As such, he has undergone more than 11 months of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
17. Per contra, the learned A.G.A. and Mr. Manoj Kumar Chandel, learned counsel for first informant have opposed these applications for bail. They jointly submit that since applicants are named as well as charge-sheeted accused, they do not deserve any indulgence by this Court.
18. Learned A.G.A. submits that the criminality committed by named accused is interlinked and inter-twined. As such, same cannot be separated or segregated. Learned A.G.A. then contends that the weapon of assault i.e. the knife was recovered on the pointing of two of the named accused namely Shiv Balak Yadav and Anand Yadav, which is an incriminating circumstance against aforesaid accused. He further submits that Investigating Officer, during the course of investigation, recovered the samples of plain earth as well as earth mixed with blood from point-B shown in the site plan. However, Investigating Officer found blood stained folding cot at point-A shown in the site plan, which was also recovered by him.
19. Mr. Manoj Kumar Chandel, the learned counsel for first informant has adopted the arguments urged by learned A.G.A. He further submits that applicants are guilty of causing the death of the son of first informant. There is nothing on record on the basis of which, it can be inferred that applicants have been falsely implicated in aforementioned case crime number. Referring to the statements of two eye-witnesses examined during the course of investigation, namely, Hari Om Yadav and Vinod Kumar Yadav, he submits that aforesaid eye-witnesses have supported the prosecution story. Hari Om Yadav is also an injured witness. He submits that since Hari Om Yadav is an injured witness, his statement cannot be discarded on trivial ground. An attempt has been made on behalf of the applicant to dislodge the prosecution case by disputing the place of occurrence. However, nothing has come forward from the applicants to explain how the injured Hari Om Yadav came to sustain the injury sustained by him. He further submits that in a case of direct evidence, motive becomes irrelevant. Furthermore, presence or absence of motive alone shall not determine the guilt/innocence of the applicant as present case is a case of direct evidence and not circumstantial evidence.
20. In rejoinder, Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel has rejoined the submissions earlier urged by him. Disputing the recovery of the weapon of assault, which has been recovered on the pointing of named accused Shiv Balak Yadav and Anand Yadav, learned Senior Counsel contends that the recovery is false. Same is implanted. As such, same cannot be relied upon. Referring to the statements of injured Hari Om Yadav, wherein the motive behind the occurrence has been explained, he submits that the explanation offered by aforesaid injured witness against the accused for committing the alleged crime is highly improbable. He, therefore, contends that irrespective of the clinching facts of the present case, applicants are liable to be enlarged on bail.
21. Having heard Mr. Gopal Swaroop Chaturvedi, the learned Senior Counsel assisted by Mr. Subhash Chandra Yadav, the learned counsel for applicants- Ramparmeshwar Yadav @ Ram Singh and Shiv Balak Yadav @ Pintu Yadav, Mr. Ram Chandra Yadav, the learned counsel for applicant- Anand Yadav, the learned A.G.A. for State, Mr. Manoj Kumar Chandel, the learned counsel for first informant as well as considering the law laid down by Apex Court in Neeru Yadav Vs. State of U.P., 2016 (15) SCC 422, this Court is not inclined to distinguish the role of the applicant- Ramparmeshwar Yadav @ Ram Singh in respect of the criminality committed by them, as the same is incapable of being separated or segregated.
22. Considering the facts and circumstances of the case, complicity of accused and accusations made but without expressing any opinion on the merits of case, this Court does not find any good or sufficient ground to enlarge the applicants on bail.
3. In view of above, present applications for bail fail and are liable to be rejected.
24. They are, accordingly, rejected.
Order Date :- 12.4.2022 "
5. Learned counsel for applicant submits that subsequent to the order dated 12.04.2022, three prosecution witnesses of fact namely P.W.-1 Prakash Yadav, P.W.-2 Hariom Yadav and P.W.-3 Vinod Yadav have been examined before court below. However, there are various contradictions in the statements of aforesaid witnesses. On the above premise, he contend that the place of occurence alleged by prosecution is doubtful. Resultantly, applicant is liable to be enlarged on bail.
6. Per contra, the learned A.G.A. for State has opposed this application for bail. He has invited the attention of Court to paragraph 13 of the order dated 12.04.2022 and on basis thereof, he contends that the issue sought to be raised by means of this repeat application has already been dealt with in the first bail application of applicant. It is then contended by learned A.GA. that though this Court is a superior Court but dictates of prudence, require that the court hearing bail application should not evaluate or appreciate the merits of the evidence that has emerged during the course of trial as any observation made by this court shall effect the prosecution or the defence. He therefore submits that no new or good ground has been made out to enlarge the applicant on bail. Therefore, this repeat application for bail is liable to be rejected.
7. When confronted with above, the learned counsel for applicant could not overcome the same.
8. As a result, this repeat application for bail falis and is liable to be rejected.
9. It is accordingly rejected.
Order Date :- 17.4.2023 YK