Allahabad High Court
Saurabh Yadav @ Kandu Yadav vs State Of U.P. on 23 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:169851 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30225 of 2023 Applicant :- Saurabh Yadav @ Kandu Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Ramanuj Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Ramanuj Yadav, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This is a repeat application for bail filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120-B IPC, Police Station- Ajnar, District Mahoba during the pendency of trial i.e. Sessions Trial No. 412 of 2022, is now pending in the Court of Additional Sessions Judge, Court No.1, Mahoba.
First bail application of applicant i.e. Criminal Misc. Bail Application No. 38000 of 2022 (Saurabh Yadav @ Kandu Yadav Vs. State of U.P) was rejected by this court by a detailed order dated 24.11.2022. For ready reference, the same is reproduced herein under:
"Heard Mr. Rafeek Ahmad Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sanjay Tripathi, for first informant.
This application for bail has been filed by applicant Saurabh Yadav @ Kandu Yadav seeking his enlargement on bail in Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba, during the pendency of trial.
Perused the record.
Record shows that in respect of an incident, which is alleged to have occurred on 28.5.2022, a delayed F.I.R. dated 30.5.2022 was lodged by first informant Ram Lal (faher of the prosecutrix) and was registered as Case Crime No. 104 of 2022, under Sections 302, 120 B IPC, P.S. Ajnar, District Mahoba. In the aforesaid F.I.R., two persons namely Kandu Yadav (applicant herein) and Rahul have been nominated as named accused.
The Gravamen of the allegations made in the F.I.R. is to the effect that named accused Kandu Yadav caused the death of Ajay Pal by firing a shot at him with a country made pistol.
Prior to the lodging of the F.I.R. the inquest (panchayatnama) of the body of the deceased was conducted on same day i.e. 30.5.2021 on the information given by Vipin Kumar Ward Boy Medical College, Jhansi. In the opinion of panch witnesses, the nature of death of deceased was characterized as homicidal i.e. on account of gun shot injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-
Entry wound No. (1) Gun shot wound of entry present over the dorsal aspect of Rt. thorax 3 cm below to Rt. scapula lower end cut size of entry wound 3 cm x 3 cm wound is lacerated in nature and their margins are inverted and irregular on opening Blackening present in wound.
(2) Around the wound No. (1) Multiple small wounds present in the area of 14 cm x 9 cm On opening an dissection of both injuries No 1and 2 A Black Plastic ticty and 24 (Twenty four) Metalic pellets Recovered from the (Rt) lung Rt. lung ruptured.
Clotted blood about 300 ml present in upper abdominal region.
In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem fire arm injury. Subsequently, the application was arrested. On his pointing a country made gun of .12 bore was recovered.
During the course of investigation, Investigating Officer examined various witnesses namely Smt. Reena Rajpoot, Rohit Rajpoot, Lekhraj Rajpoot, Balwan Singh, Jai Singh, Ram Prakash Tewari and Suresh Rajpoot. Ram Prakash and Suresh Kumar who were examined by the Investigating Officer under Section 161 Cr. P. C. have clearly deposed that applicant was seen coming from the direction where dead body of the deceased was lying. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to be conclusion that complicity of applicant is established in the crime in question. He, accordingly, submitted the charge sheet dated 20.7.2022, whereby named accused have been charge sheeted under Sections 302, 120 B IPC.
Learned counsel for applicant submits that even though applicant is named as well as charge sheeted accused, but he is innocent.
It is next contended that there is no eyewitness of the occurrence. Thus, present case is a case of circumstantial evidence. As such same is required to be considered in the light of the parameters required to be established in a case of circumstantial evidence as per law laid down by Apex Court in paragraph 152 of the judgement in Sharad Biridhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622. However, none of the parameters as enunciated in aforesaid judgerment are satisfied in the present case.
It is then contended that the recovery of the weapon of assault on the pointing of applicant is implanted, as there is no independent witness of alleged recovery. The inference of last seen drawn on the basis of statement of Ram Prakash and Suresh Kumar is not so clinching so as to infer the guilt of the applicant and no other hypothesis. 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 30.5.2022. As such, he has undergone 5 1/2 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.
Per contra, the learned A.G.A. has opposed the present application for bail. He submits that applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The recovery of weapon of assault has been made on the pointing of applicant. The gun shot injury sustained by the deceased can be caused from the weapon recovered from the applicant. The motive behind the occurrence is also established against applicant as per statement of witness Ram Prakash. As such, present application for bail is liable to be rejected.
When confronted with above, the learned counsel for applicant could not overcome the same.
Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a named as well as charge sheeted accused, recovery of the weapon of assault was made on the pointing of applicant, the recovery of weapon of assault on the pointing of applicant shall not be false on account of absence of an independent witness in view of judgement of Supreme Court in Mukesh and another Vs. STATE (NCT OF DELHI) AND OTHERS, (2017) 6 SCC, 1, the testimony of Ram Prakash and Suresh Rajpoot cannot be disbelieved at this stage in the absence of the applicants version of occurrence, but without expressing any opinion on the merits of the case, no case for bail is made out.
Accordingly, present bail application fails and is liable to be rejected.
It is, accordingly, rejected. "
Learned counsel for applicant contends that subsequent to the order dated 24.11.2022, co-accused Ragni has been enlarged on bail vide order dated 28.4.2023. Applicant in in jail since 30.5.2022. As such, he has undergone more than one year and three months of incarceration. The trial is proceeding at the snail's space. There is no likelihood of the trial getting concluded in near future. As such, 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.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the weapon of assault was recovered on the pointing of applicant. Recovery corroborates with the gun shot injuries sustained by deceased. It is then contended by learned A.G.A. that co-accused is a lady. Referring to the provisions contained in proviso to section 437 Cr.P.C. he submits that co-accused being a lady was liable to be enlarged on bail. As such, no parity can be determined by applicant with co-accused Ragni who has been enlarged on bail. Two prosecution witnesses of fact P.W.1 and P.W.2 have already been examined. On the above premise, it cannot be said that trial is proceedings at an snail's space. As such, no new or good ground is made out to enlarge the applicant on bail. He, therefore, contends that the application is liable to be rejected.
When confronted with above, the learned counsel for applicant could not overcome the same.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the material as has emerged on the record and noted herein above, no new or good ground is made out to enlarge the applicant on bail.
In view of above, the present application fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 23.8.2023 Arshad