Allahabad High Court
Rishipal Singh vs State Of U.P. on 27 August, 2020
Equivalent citations: AIRONLINE 2020 ALL 2698
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 3 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 18920 of 2020 Applicant :- Rishipal Singh Opposite Party :- State of U.P. Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.,D.P.S. Chauhan,Dharmendra Pratap Singh Chauhan with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17051 of 2020 Applicant :- Abhishek Alias Fota Opposite Party :- State of U.P. Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.,Dharmendra Pratap Singh Chauhan Hon'ble Samit Gopal,J.
Heard Sri R.P.S. Chauhan, learned counsel for the applicants in both the bail applications who is present in Court, Sri Shiv Nath Singh, learned Senior counsel assisted by Sri Surya Bhan Singh, learned counsel on behalf of the first informant through video conferencing and Sri I.P.S. Rathore, learned AGA for the State who is also present in Court and perused the material on record.
These bail application under Section 439 of Code of Criminal Procedure have been filed by the applicants Rishipal Singh and Abhishek Alias Fota, seeking enlargement on bail during trial in connection with Case Crime No. 399 of 2019, under Sections 302, 120B IPC registered at P.S. Chhajlet, District Moradabad.
Vide order dated 26.08.2020 passed by this Court, office was directed to trace out a supplementary affidavit sent by the learned counsel for the applicants through e-mail to the nominated e-mail ID of the office of this Court as the same was not on record. As per office report dated 27.08.2020 a supplementary affidavit has been traced out and the same is placed on record which is bearing no. 3 of 2020. The compliance of the order dated 26.08.2020 has thus been done by the office.
Since both the bail applications relate to the same case crime number and the applicants herein are co-accused in the same, the same are being heard together are being decided by a common order. Learned Senior counsel appearing for the first informant and the learned AGA have no objection to the same.
Sri R.P.S. Chauhan, learned counsel for the applicant states that he shall be referring to the paper book of bail application of Rishipal Singh while arguing the matter.
Sri R.P.S. Chauhan, learned counsel for the applicants argued that the occurrence in the present matter took place on 01.11.2019 at about 9.15 a.m. for which a first information report was lodged on 02.11.2019 at about 22.12 hours by Sharad Kumar son of the deceased which was registered under Section 307 IPC against unknown persons. Version as stated in the first information report is that of 01.11.2019 at about 9.15 a.m. the father of the first informant namely Suraj Singh along with the wife of the first informant namely Smt. Poonam Rani who is a teacher in a primary school were going on motorcycle driven by Suraj Singh for dropping Smt. Poonam Rani to the school and when they reached somewhere between Chhajjupura and Pachokara a Scorpio vehicle came from the front and hit them as a result of which both the persons fell down. The vehicle was occupied by 3-4 unknown persons who were armed with lathi, danda and sariya who with an intention to kill, started assaulting his father on which his wife raised a shout whereon one person ran to assault his wife and on seeing persons coming from the nearby fields who were working their all the persons fled away in the said vehicle. Father of the first informant was left in a bad condition at the said place who as of know is in AIIMS Delhi and his treatment is going on but his condition is very critical. It is thus, stated in the first information report that the family members of the first informant are facing threat of their lives from the unknown assailants. It is thus, stated in the end that a report against the said unknown assailants be registered and legal action be initiated.
It is argued that the first informant is not an eye witness of the incident.
Learned counsel has then placed the injury report of the injured Suraj Singh which is annexure 2 to the affidavit prepared while he was in an injured condition and while placing the said injury report has argued that the injury 4 being a lacerated wound appears to be a fatal injury as the other 5 injuries cannot in any manner be construed to be fatal at all. Further learned counsel has then placed another injury report of Suraj Singh which along with other documents is also annexed as annexure 2 particularly at page 50 of the paper book and has argued that the contents in the same would go to show that the present case was reported as a case of accident and the injured was hit by four wheeler as has been noted therein. He has placed the injuries which have been gone through. However, the CT scan report of the head has been placed which is at page 52 of the paper book in which Doctor has found fracture of the temporal bone and facial bones. Learned counsel has then drawn the attention of the Court to the site plan which is annexed as annexure 3 and has proceeded to argued that the place of occurrence has been shown therein which is a road which is surrounded by agricultural fields on both the sides. Learned counsel has then placed before the Court that Smt. Poonam Rani the wife of the first informant and the daughter in law of Suraj Singh was a crucial witness of the incident and the only person present at the place of occurrence from the side of the prosecution as per the first information report. Her statement recorded under Section 161 Cr.P.C, copy of which is annexure amongst other statements as annexure 4 particularly at page 68 which is dated 06.11.2019 has been placed and it has argued that she has also towed the same version as that of the first information report as stated that the present incident has been committed by unknown persons. It is further argued while placing the second statement of Smt. Poonam Rani recorded under Section 161 Cr.P.C. on 07.11.2019 which is at page 69 of the paper book that it is for the first time after recording of the first statement on the very next day she discloses the features of three persons by stating her physical appearances. Even it is argued that no one is named as an accused therein. Learned counsel has then stated and argued while placing reliance on annexure 6 that on 18.11.2019 the Investigating Officer notes in CD No. 9 that he meets the first informant at his house and asks about the said incident on which the first informant states that his wife Smt. Poonam is a witness present at the place of occurrence who has disclosed him that Ranveer Singh and Yashveer Singh are the eye witnesses of the incident. It is then argued that immediately thereupon the Investigating Officer interrogates Yashveer Singh and Ranveer Singh on 18.11.2019 itself and their statements are also annexed along with the said noting in the case diary and are also annexure 6 who claimed themselves to be eye witnesses of the incident and have for the first time disclosed the name of the applicants Rishipal Singh, Abhishek @ Fota and one other person by describing him as a person of grey complexion as accused. While criticising the evidence of Yashveer Singh and Ranveer Singh learned counsel for the applicants states that Yashveer Singh is a family member of the first informant and Ranveer Singh is the nephew of the deceased. Learned counsel for the applicant then placed before the court CD No. 25 dated 15.01.2020 which is annexed as annexure 7 and states that then the names of two persons namely Mitendra Singh and Virendra Singh s/o Jagdish Singh have been introduced by the first informant on being asked about eye witnesses of the incident. Immediately thereupon on the same day i.e., 15.01.2020 Virendra Singh son of Jagdish Singh and Mitendra Singh are also interrogated under Section 161 Cr.P.C. who disclose the name of three persons as accused in the present matter and claim themselves to be eye witnesses. The names of the said three persons are Rishipal Singh, Abhishek @ Fota and Sachin Kumar. Learned counsel has then placed annexure 8 to the affidavit being CD No. 41 dated 08.03.2020 and has stated that the Investigating Officer states therein that the first informant has come to the police station and has stated that one Virendra Singh son of Jaiveer Singh went to him and stated that he wants to tell something about the incident on which he stated that the same may be disclosed to the SHO at the police station and both the persons reach the police station and inform the same to the SHO after which the statement of Virendra Singh son of Jaiveer Singh was recorded on 08.03.2020. It is then stated that Virendra Singh son of Jaiveer Singh discloses that two persons are involved in the present incident in which one is Rishipal singh who is alleged to be armed with danda and one other unknown person was alleged to be armed with rod and nephew of Rishipal who is called Fota was shouting from the vehicle to speed up as someone is coming and till the time they would reach the place of occurrence the accused fled away. He then states that previously he did not disclose anything to anyone as the matter was of his village but now since Suraj Singh has died, his conscience has knocked now and he is telling the truth whatever he saw. Learned counsel then stated that on 22.01.2020 an alleged recovery was affected wherein the police has shown the recovery of a danda and an iron rod on the pointing out of Abhishek @ Fota from a place at the back of the house of Rishipal Singh which though have been shown to be recovered, are not incriminating in any manner. It is further argued that the Suraj Singh died on 10.02.2020 at 10.40 a.m. and after his death the present case was converted into one from an offence under Section 307 IPC to an offence under Secction 302 IPC along with other Section. It is further argued that while the matter was for offence under Section 307 IPC Rishipal Singh applied for bail before the court below through Criminal Misc. Bail Application No. 399 of 2020 (Rishipal Singh Vs State of U.P.) which was allowed vide order dated 28.01.2020 passed by the Sessions Judge Muradabad the copy of which is annexure 10 to the affidavit. It is argued that in so far as Rishipal Singh is concerned he was granted bail on 28.01.2020 by the court below on the same material as was collected except for the statement of Birendra Singh s/o Jaiveer Singh who had volunteered to disclose certain facts to the first informant and was brought by the first informant to the police station and the other event of the death of Suraj Singh but the evidence and the injuries as received by Suraj Singh remained the same from 28.01.2020 i.e., the date of his being granted bail, to 10.02.2020 i.e., the death of Suraj Singh. It is thus argued that the applicants have been falsely implicated without any reliable and cogent evidence on record. It is next argued that the prosecution has not come out with any motive for the applicants to commit the murder. The presence of the alleged eye witnesses apart from Smt. Poonam Rani has been challenged and her disclosing the name of Ranveer Singh and Yashveer Singh at a belated stage is argued to be a falsity. While placing the criminal history of Rishipal Singh, learned counsel for the applicant has placed before the Court para 2 of the supplementary affidavit and has stated that he has been reported to be involved in six cases. It is argued that the explanation of all the six cases being given in para 3 to 7 of the supplementary affidavit. In the first and the second case, being Case Crime No. 186 of 2019 and 147 of 2015, the said cases have been wrongly shown against the applicant Rishipal Singh as he was never an accused in the matter and was never ever prosecuted therein. In the third case being Case Crime No. 281 of 1996, under Section 25 Arms Act, as per the instruction of the counsel and the averments in para 4 the applicant was granted bail by the court below. In the fourth case being Case Crime No. 212 of 2019, under Section 308, 324, 325, 504 IPC the year has been wrongly reported which should have been 2003 and in the same the applicant Rishipal Singh has been acquitted. The explanation is tendered in para 5 of the supplementary affidavit. Further the fifth case being Case Crime No. 341 of 1986, under Section 302, 201 IPC is one in which the applicant Rishipal Singh has been acquitted of the charges as mentioned in para 6 of the supplementary affidavit. In the last case as reported being Case Crime No. 272 of 1996, under Sections 395, 397, 412 IPC it is averred that the applicant Rishipal Singh was never an accused in the same but was only called and put up for identification and even therein he was not identified as an accused and as such he has not been an accused in the said matter. A part from the said six case one more case has been disclosed and explained in para 8 of the supplementary affidavit being Case Crime No. 289 of 2015, under Sections 498A, 323, 504 IPC and ¾ Dowry Prohibition Act, which has been explained in the same para as has been lodged by the daughter-in-law of Rishipal Singh pertaining to a marital dispute between her and her husband. It is thus stated that the applicant has clean antecedents as of know. It is further stated that the applicant is in jail since 12.03.2020.
Sri R.P.S. Chauhan, learned counsel for the applicant while placing the arguments in connected matter of Abhishek Singh @ Fota has adopted all the arguments as placed in the bail application of Rishipal Singh but has clarified that he has no criminal history as has been alleged in para 43 of the affidavit in support of the bail application. It has been stated that he is in jail since 23.01.2020.
It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. There is no likelihood of early conclusion of trial and hence, the applicants may be released on bail during pendency of trial.
Per contra, Sri Shiv Nath Singh, learned Senior counsel has argued that naming the accused in the first information report is not important at all specially looking to the nature of the present incident. It is argued that there has been a recovery on the pointing out of Abhishek @ Fota for which the recovery memo is annexed and was even placed by the learned counsel for the applicant.
Learned Senior counsel has placed reliance upon the statement of Sunil Saini, Yashveer Singh, Ranveer Singh and Virendra Singh son of Jaiveer Singh, annexed specifically and more particularly at pages 71, 91, 92 and 102 of the paper book of the bail application of Rishipal singh and has proceeded to argue that the said witnesses have specifically claimed themselves to be eye witnesses and have named both the accused persons. It is argued that the presence of the said persons at the place of occurrence cannot be doubted and even from the version as given by them of the incident goes to corroborate the version of the prosecution in full thereby leaving no doubt of their presence at the place of occurrence. In so far as Rishipal Singh is concerned the learned Senior counsel has stated that previously he was involved in six cases which shows that he was a person of criminal bent of mind.
Learned AGA has opposed the prayer for bail and has stated that he adopts the arguments of learned counsel for the first informant in full and only adds to it that there is recovery of certain articles from pointing out of Abhishek @ Fota which would be a recovery under Section 27 of the Indian Evidence Act, 1872.
After perusing the records in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, it is clear that the applicants are not named in the first information report. The prosecution has come out initially with Smt. Poonam Rani as only the star witness of the incident from 02.11.2018 till 18.11.2018 on which date subsequently Ranveer Singh and Yashveer Singh were introduced as eye witnesses and then later on Ranveer Singh and Mitendra Singh were further introduced as eye witnesses on 15.01.2020 and in the last on 08.03.2020 Virendra Singh son of Jaiveer Singh was also introduced as an eye witnesses. In the end prosecution stands as of know with five eye witnesses of the incident though their names were not disclosed in the FIR, the two statements recorded under Section 161 Cr.P.C of Smt. Poonam Rani the sole person accompanying the deceased on a motorcycle. In so far as Rishipal Singh is concerned he was granted bail by Sessions Judge in the present matter itself and the injuries received by Suraj Singh at the time of grant of bail to him were the same at the time of his death. There was no distinction in so far as the prosecution case and the evidence is concerned at the time of grant of bail to Rishipal Singh by the Sessions Judge expect for the injured Suraj Singh being death and sudden appearance of Virendra Singh son of Jaiveer Singh as an eye witnesses on 08.03.2020 that to who volunteered himself, reached the first informant to disclose certain facts who was then accompanied by the first informant to the police station and was branded as an eye witness.
The Hon'ble Apex Court in the case of Dataram Singh v. State of U.P. : (2018) 3 SCC 22 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further been held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. It has been held as under:
"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons."
The nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, larger mandate of the Article 21 of the Constitution of India and the dictum of Hon'ble Apex Court in the case of Dataram Singh (supra), this Court is of the view that the applicants may be enlarged on bail.
Let the applicants- Rishipal Singh and Abhishek Alias Fota, 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) The applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the date 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.
(iv) The applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.
(V) The applicants shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants are 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 them in accordance with law and the trial court may proceed against them under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicants to prison.
The bail applications are allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 27.8.2020 Ujjawal (Samit Gopal, J)