Allahabad High Court
Gayan Prakash vs State Of U.P. on 5 October, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25396 of 2020 Applicant :- Gayan Prakash Opposite Party :- State of U.P. Counsel for Applicant :- Girish Kumar Mishra Counsel for Opposite Party :- G.A.,Sanjive Kumar Gupta Hon'ble Dinesh Pathak,J.
Heard Sri Girish Kumar Mishra, learned counsel for the applicant, Sri Saijive Kumar Gupta, learned counsel for the opposite party, learned A.G.A. for the State and perused the material on record.
Vakalatnam filed by Sri Sanjive Kumar Gupta, learned counsel for the informant/complainant is taken on record.
The present bail application has been filed by the applicant with a prayer to release the applicant on bail in Case Crime No. 139/2020, under Section 302, I.P.C. of Police Station- Kotwali, District- Badaun.
As per F.I.R. version, on 02.06.020 at about 07.00 p.m., Amod Gupta and Ashish Gupta, sons of informant Shiv Kumar Gupta were returning from Brahmaputra, Bareilly. From Bareilly Cant a vehicle, Honda City, bearing Registration No. U.P. 16 L 2105 was chasing the Amod's vehicle, because he possessed sufficient amount of money in cash with him. Near Malgaon, Honda City overtook the vehicle of Amod. In the meantime, Amod informed at his home that he is being chased and trapped by miscreants. Anyhow he drew his vehicle rear side and moved from the place. On the way the driver of the Honda City had tried several time to overtake and hit the vehicle of Amod. At Shavajpur Mode near Mochi Nagla, Amod and Ashish got down from their vehicle and Amod asked as to why they are chasing to him. In the meantime, one person who got down from chasing vehicle, threw Amod in front of his vehicle and another person who was driving, ran him over with the vehicle with intention to kill Amod. While Puspashu Sharma son of Kamal Kant and Manoj Singh son of Rajendra Singh and others family member reached on the spot, accused ran away from the scene. Informants and others took Amod to the clinic of Dr. A.K. Verma for treatment. Accused persons again came in the clinic and try to assault with Screwdriver. All the persons, who were present, have caught the assailants and handed them over at the police station. The health condition of Amod was critical, therefore, he had been taken to Bareilly for medical treatment.
Learned counsel has submitted that applicant's name was not mentioned in the F.I.R. For the first time Ashish, brother of Amod(deceased), who was claiming to had accompanied Amod, has taken the name of the present applicant. In his statement recorded under Section 161 Cr.P.C. he has stated that he had been informed by his brother, Amod, that the person who was driving the vehicle is Dheeraj and another person who was sitting beside him was Gayan Prakash with whom he scuffled earlier many times. He has also drew the attention of the Court towards the statement of informant namely Shiv Kumar Gupta, under section 161 Cr.P.C., who has not taken name of the present accused in his statement as well as in the F.I.R. He has stated that while he took Amod to the clinic of Dr. A.K. Veram for the medical treatment, on the way Ashish told him about the alleged incident. Learned counsel has submitted that informant, in his statement, has not stated that Ashish has taken the name of the present applicant that he was the person who was present in the vehicle. It is also submitted that applicant has been shown to be arrested on 06.07.2020, while the incident took place on 02.06.2020 and F.I.R. was lodged in the intervening night of 2/3.06.2020 at about 00.16 a.m. In Recovery Memo (Annexure No. 5), it is shown that on the information from the informant Investigating Officer has found the vehicle in question i.e. U.P. 16 L 2105 near Dhaba of Banti and these two accused namely Dheeraj Singh and Gayan Prakash were sitting in the vehicle, who were arrested therefrom. Learned counsel for the applicant has submitted that it is very astonishing and ridiculous that, as per F.I.R. version, accused were caught hold on the day of incident from the clinic of Dr. Verma and handed over to the Police Station but there is no whereabouts of the said accused persons who were arrested on the date of incident. Learned counsel for the applicant has further submitted that in the F.I.R. Puspashu Sharma son of Kamla Kanat and Manoj Singh son of Rajendra Singh were shown to be present on spot and came there after the receiving telephonic call from Amod. Unfortunately statement of the Puspashu Sharma and Manoj Kumar, who are eye witness, have not been taken by the Investigating Officer to ascertain the involvement of the present applicant. Even no identification parade has been conducted to ascertain the involvement of the present applicant. It is further submitted that statement of Ashish creates doubt inasmuch as he has stated that people standing on the spot and family members had chased the Honda City and caught the acused persons near the nursing home of Dr. A.K. Verma but, anyhow, they got them free and fled away from the spot. Therefore, the statement of the Ashish is not credible and contradictory to the contents of the F.I.R. and the statement of his father.
Per contra, learned counsel for the opposite party contends that in his statement under section 161 Cr.P.C. Ashish, son of Shiv Kumar Gupta, has clearly taken the name of the present applicant Gayan Prakash and his accomplice Dheeraj, who was driving the vehicle. As per the statement of the Ashish, his brother Amod had told him that the person who was driving the vehicle, his name was Dheeraj and other person who was sitting beside him was Gayan Prakash. He has further submitted that Recovery Memo dated 04.06.2020 reveals that Ashish has recognized both the persons who were chasing him and his brother Amod. Ashish has clearly stated that they threw his brother Amod in front of Honda City with intention to kill him.
After perusal of the documents, filed along with the bail application, in totality of the facts and circumstances of the present case it is significant to note that there is a contradiction with respect to the identity and catching of accused, between the version of F.I.R. and the statement of first informant and his son Ashish given u/s 161 of Cr.P.C. which creats suspicious circumstances with respect to complicity of applicant in the commission of crime as mentioned in F.I.R. First informant has lodged F.I.R. against the unknown persons. In seventh column of F.I.R. only registration number of vehicle is mentioned as suspected/accused. In the F.I.R. it is stated that the accused were caught in the clinic of Dr. A.K. Verma and had been handed over to the police, but aforesaid version has neither been corroborated in the statement of first informant namely Shiv Kumar Gupta nor in the statement of Ashish, who is brother of the Amod and claimed that he was also present on the spot. Even Ashish, in his statement has stated that though accused were caught near the clinic of Dr. A.K. Verma but, anyhow, they got themselves released and fled away. First informant has not stated that his son Ashis had taken the name of accused, on the way, while Amod had been carried to the clinic of Dr. A.K. Verma. It is very surprising that, as per statement of first informant, Ashish had told him about the incident but had not taken the names of accused about whom his brother Amod had already told him in the car. In Para 12 of the affidavit filed in support of the bail application it is stated that offending vehicle i.e. Honda City bearing Registration No. U.P. 16 L 2105 is registered in the name of Dharmendra Singh Bharitya, son of Anwar Singh, and present applicant has no any connection with the aforesaid vehicle. He has been illegally implicated in the present matter. There is nothing on record to show that offending vehicle in question is missing or any F.I.R. has been registered in this respect. It is also significant to note that Puspasu Sharma, son of Kamla Kant and Manoj Singh son of Rajendra Singh were present on the spot and their statements could have been vital in the present matter, but they have not been examined by the Investigating Officer to corroborate the version of F.I.R.
Learned counsel for the applicant has emphasized the manner of recovery which was made on 04.06.2020, in which the present applicant and his accomplice have been shown to be arrested along with the vehicle on the basis of information given by some unknown informant. No independent witness has been adduced to verify the fact of recovery. Even nothing on the record to show that any identification parade has been conducted to identify the present persons and their involvement in the crime in question. Mere statement of Ashish, u/s 161 Cr.P.C., which appears to be suspicious and not credible in reading with the statement of his father Mr. Shiv Kumar Gupta and version of F.I.R., cannot be made basis, at this stage, four accusation of the crime as alleged in F.I.R. against the present applicant. Learned counsel for the applicant further submits that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses. In case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that the applicant is languishing in jail since 05.06.2020.
Learned A.G.A. has also vehemently opposed the bail application and contended that his innocence cannot be adjudicated at pre trial stage, therefore, he does not deserve any indulgence and there is likelihood of his involvement in other case. In case he is released on bail, he may misuse the liberty of bail.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties, nature of allegation and also perusing the material on record, without expressing any opinion on merit of the case, the applicant is entitled for bail.
Let the applicant- Gayan Prakash involved in Case Crime No. 139 of 2020, under Section 302, I.P.C. of Police Station- Kotwali, District- Badaun, be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant 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 applicant shall file an undertaking to the effect that he 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 applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.
(v) The applicant 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 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 and the trial court may proceed against him 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 applicant to prison.
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 :- 5.10.2020 Sachin Tiwari