Allahabad High Court
Subas Mishra vs State Of U.P. on 15 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:88093 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10544 of 2024 Applicant :- Subas Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Prateek Kumar,Sanjeev Kumar Pandey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Prateek Kumar, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This bail application has been filed by applicant Subas Mishra seeking his enlargement on bail in Case Crime No. 11 of 2023, under Sections 147, 148, 149, 302, 34 IPC, Police Station- Zafrabad, District- Jaunpur during the pendency of trial.
4. At the very outset, the learned counsel for applicant contends that co-accused Rajendra Prasad Misra has already been enlarged on bail by this Court vide order dated 4.7.2023, passed in Criminal Misc. Bail Application No. 20480 of 2023 (Rajendra Prasad Mishra @ Rajendra Mishra Vs. State of U.P.). For ready reference the same is reproduced herein under:
"Heard Mr. Rahul Mishra, the learned counsel for applicant, the learned A.G.A for State and Mr. Anurag Upadhyay, the learned counsel for first informant.
This application for bail has been filed by applicant Rajendra Prasad Mishra @ Rajendra Mishra seeking his enlargement on bail in Case Crime No. 11 of 2023 under sections 147, 148, 149, 302, 34 IPC, Police Station- Zafrabad, District-Jaunpur, during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 18.1.2023, a belated FIR dated 19.1.2023 was lodged by first informant Avnindra Narayan Mishra and was registered as Case Crime No. 11 of 2023 under sections 147, 148, 149, 302, 34 IPC, Police Station- Zafrabad, District-Jaunpur. In the aforesaid FIR four persons namely, Rajendra Prasad Mishra, Sandeep Mishra, Vikas Misra and Subhash Mishra have been nominated as named accused, whereas two unknown persons have also been araigned as accused.
The gravamen of the allegations made in the F.I.R. is to the effect hat there is old enmity in between the family of the first informant and the named accused on account of certain land dispute. On 18.1.2023, younger brother of first informant went to his shop from his house on his bullet motorcycle. At around 11:15 am near Mehrupur Gate at Shankerganj, named accused seated in a car chased the brother of the first informant and thereafter made indiscriminate firing on account of which brother of first informant sustained gun shot injuries on his stomach and back. On account of above brother of first informant fell on the ground. Thereafter the first informant who was following his brother took the injured to Sadar Hospital, Jaunpur. After administering primary treatment the injured was referred to the Trauma Centre, Varanasi on account of his critical condition. While the injured was undergoing treatment at Trauma Centre Varanasi he scummed to the injuries sustained by him.
The information regarding the death of the injured namely Amitabh was given by a Doctor of aforesaid hospital at the concerned Police Station. On the said information, the inquest (panchayatnama) of the body of the deceased was conducted on 20.1.2023. In the opinion of witnesses of inquest (panch witnesses) the nature of death of deceased was characterized as homicidal. Thereafter, the post mortem of the body of deceased was conducted. The autopsy surgeon, who conducted autopsy of the body of deceased found following ante-mortem injuries on the body of deceased. :
1. Surgical stitched wound of 26 cm with 20 stiches over abdomen, 6 cm below to x1 phisdeernums.
2. Surgical stiched wound of 2 cm stitches over Rt. side abdomen, 14 cm below Rt. nipple and 9 cm outer to.
3. Surgical drain wound of 1 cm x in diameter over Rt side abdomen 20 cm Rt nipple, 14 cm outer to midline.
4. Surgical colustoing wound over Rt. side lower abdomen, 3 cm in dieameter, 6 cm outer to midline, 29 cm below rt.
5. Surgical drain wound of 1 cm in diameter over Lt. side abdomen 13 cm outer to midline, 27cm below Lt. Nipple.
6. Surgical stitched wound of 2 cm 2 stitched over Lt. flank, 26 cm below Lt. axilla 24 cm over to midline.
7. Firearm entry wound of 1 cm in diameter with blackening andinverter over back of Rt. side abdomen, 21 cm below to angle of Rt. scapula, 7 cm outer to midline (back bone) 110 cm above Rt. heel.
On opining-1 firearm injury no.7 the bullet was travelling from Rt. to Lt. ward down ward, back to front ward, bullet entering between till to an..
large intestine with jejunum and liver was suptwud. I found about 1.5 in parietal cavity. Body came back to P.M house, shivpur Varanasi.
In the opinion of autopsy surgeon, the cause of death of deceased was Hemorrhagic shock due to firearm injury.
During course of investigation, Investigating Officer examined first informant namely, Arvind Narayan Mishra who has supported the F.I.R. and has reiterated the same in his statement.
2. Chandra Bhushan Singh- who is not an eye witness of the occurrence.
3. Dharm Raj Mishra- who is also not eye witness of the occurrence.
4. Akhilesh Singh- who is an eye witness of the occurrence but could not specify the role of accused nor could he identify the accused.
5. Teni Mistri- is also an eye witness of the occurrence but he also could not identify the accused nor could specify their role.
6. Bhole Shanker Singh- he is not an eye witness of the occurrence.
Subsequently, the named accused were arrested and they were sought to be identified by the first informant. At this juncture, the statement of the first informant was again recorded. It is in this statement that first informant has nominated Vikas Mishra and Subhash Mishra as the authors of gun shot injures sustained by the deceased. The same is clearly explicit from the document occurring at page 124 of the paper book.
On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. Accordingly, he submitted the charge sheet dated 16.4.2023, whereby named accused including the applicant have been charge sheeted under sections 147, 148, 302, 149 and 34 IPC.
Learned counsel for applicant contends that though the applicant is a named and charge sheeted accused, yet he is liable to be enlarged on bail. He has invited the attention of Court to the subsequent statement of the first informant which is on record at page 123/124 of the paper book. On the basis of above, he submits that as per the aforesaid statement of first informant the authors of the fatal gun shot injuries sustained by deceased are Vikas Mishra and Subhash Mishra. He, therefore, contends that case of present applicant is clearly distinguishable from co-accused Vikas Mishra and Subhash Mishra.
The police report in terms of section 173 (2) Cr.P.C has already been submitted and therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Irrespective of the fact that the charge sheet has already been submitted, no such circumstance has emerged necessitating the custodial arrest of applicant during the course of trial. Applicant is in jail since 20.1.2023. As such he has undergone more than five months of incarceration. Applicant has only one criminal case registered against him. The criinal history of the appliant has been sufficiently explained in paragraph 35 of the affidavit filed in support of present application. It is thus urged by learned counsel for applicant that in view of above, 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 for State and Mr. Anurag Upadhyaya, the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Criminality committed by named and charge sheeted accused, including applicant is joint and common. Therefore, same is incapable of being separated or segregated. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, submissions urged by learned counsel for applicant as noted herein above, which could not be dislodged by the learned A.G.A. or by the learned counsel representing first informant, case of present applicant is clearly distinguishable from co-accused Vikas Mishra and Subhash Mishra who are the author of the fatal gun shot injuries sustained by the deceased but without making any comments on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Rajendra Prasad Mishra @ Rajendra Mishra, 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 APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. "
5. Another co-accused Sandeep Kumar Mishra has also been enlarged on bail vide order dated 26.7.2023, passed in Criminal Misc. Bail Application No. 32710 of 2023 (Sandeep Kumar Mishra Vs. State of U.P) which is at page 84 of the paper book. However, for ready reference, the same is extracted hereinunder:-
"1. ??????? ??????? ???????? ????? ????????? ???? ????? ?????? ????? ????? ?? ?? ?? ??????? 11/2023, ???????? ???? 147, 148, 302, 149, 34 ?????????, ???? ????????, ???? ?????? ??? ????? ?? ????? ???? ???? ???????? ???? ??? ???
2. ????? ?? ??????? ???????? ??? ??????? ??? ?????? ???????? ?? ???? ??? ???????? ?? ??????? ?????
3. ????? ?? ??????? ???????? ?? ???? ???????? ???? ?? ????? ?? ?? ?????? ??? ??? ??? ????? ??? ?? ???? ?????? ??? ??, ???? ???? ????? ????? ???? ???? ??? ????? ?? ?????????????? ?????? ?? ???? ?? ?????? ???? ?? ???? ????? ?? ????? ?????? ?????????? ????? ????? ? ????? ????? ?? ??, ????? ?? ???? ???????? ?? ?????/??? ??? ?????????? ????????? ????? ?? ??? ???? ???? ?? ??? ???? ??? ??? ????? ?? ????? ??? ????????????? ?????? ?? ???? ?? ????? ???? ??? ??? ???? ?? ?? ??? ?? ?? ?????????? ????????? ????? ?? ?????, ????? ????? ???? ??? 20480/2023 ??? ?? ???????? ?? ???? ???????? ?? ???? ??? 20480/2023 ??? ??????? ?? ?? ???? ??? ????? ?? ??? ?? ?????????? ?? ???? ??? ????? ????? ?? ????? ???? ?? ??????? ??? ????? ??????? ?? ??? ?? ?? ?????? ??? ??? 20.01.2023 ?? ??????? ??? ??????? ??? ????? ????? ?? ????? ?? ???? ???? ????
4. ??????? ??? ?????? ???????? ?? ????? ?? ????? ?? ????? ????? ???? ??? ???? ???????? ???? ?? ????? ?????? ????? ????? ??????? ??? ????? ??????? ?? ??, ????? ????? ?? ????? ?? ? ????? ????
5. ????? ?? ??????? ???????? ?? ?????? ?? ???????????? ??? ???????? ?? ?????? ?????? ?????? ??? ???????????? ?? ????? ??? ?? ?????? ???? ?? ???, ?????? ?? ??????? ?? ???? ?? ??? ?????????? ??????? ?? ?????????? ??? ?????? ??????? ?? ???????? ?? ??????? ? ???? ?? ???? ?? ????? ??? ???? ??? ??? ????? ?? ????? ?? ????? ???? ?? ??????? ???? ???
6. ??? ??? ?? ???-??? ?? ???? ??? ??????? ??? ??? ????? ?? ??????? ?????? ????? ??? ??????? ???????? ?? ???????? ?? ????????? ???-???? ??? ???? ?????? ?? ?? ??????? ??????? ???????? ???? ?? ?????????? ???? ?? ??? ????? ?? ???? ???? ????
1. ????? ??????? ?? ??????? ?? ????? ??????? ????????? ?? ??? ???????? ???? ??????
2. ????? ??????? ????????? ? ??????? / ??????????? ?? ???????/???????? ?????
3. ????? ???????? ?? ?????? ?? ???? ?????, ?? ??????? ?? ????? ???? ??? ???????? ????? ??? ???? ???? ?? ???????? ??? ??????? ???? ??? ??????? ??? ???????? ?? ????? ??????
4. ????? ????? ?? ???? ???? ?? ??? ????? ?? ?????????? ?? ???????? ??? ????? ?? ???? ?? ??????? ??????? ??? ????? ???? ???? ? ??? ??????? ????? ??????
5. ????? ????????? ?? ?????????? ??? ?? ????? ?? ?????? ?? ?????? ???? ?? ??????? ?? ????? ?????????? ?? ??? ??????? ?? ???? ???? ???? ? ?? ???? ??? ????? ?????, ????? ???? ?????? ???????? ??? ?????? ?? ????? ???? ?? ???? ???? ?????
??????? ?????? ??? ?? ???? ?? ??????? ?? ????? ???, ??????? ???????? ????? ?? ????? ?????????? ???? ???? ?? ???????? ???"
6. Mr. Pratik Kumar, the learned counsel for applicant has then invited the attention of Court to internal page 3 of the order dated 4.7.2023, referred to above. He submits that recital occurring in third paragraph of aforesaid order:- to the effect that the second statement of the first informant was recorded wherein he has nominated Vikas Mishra and Suvash Mishra as the author of the injuries sustained by the deceased is factually incorrect. The correct fact is that the statement of the brother of first informant Ajitabh Narayan Mishra was recorded after 20 days of the occurrence, wherein he has nominated Vikas Mishra and Suvash Mishra as the authors of the gun shot injuries sustained by the deceased. On the aforesaid premise, it is thus contended by the learned counsel for applicant that since there is delay in recording the statement of aforesaid witness therefore by virtue of the law laid down by Supreme Court in Shahid Khan Vs. State of Rajasthan (2016) 4 SCC 96, the said statement is not worthy of reliance.
7. It is then contended that subsequently, widow of the deceased namely Ruby Mishra, lodged an F.I.R. dated 18.11.2023, which was registered as Case Crime No. 11 of 2023, under Sections 147, 148, 149, 302, 34 IPC, Police Station- Zafrabad, District- Jaunpur. The same is on record at page 70 of the paper book. He further contends that after aforementioned F.I.R. was lodged, the case was transferred to the crime branch. During course of investigation, the Investigating Officer recovered the CCTV footage, the description of which is at page 93 of the paper book. On the basis of aforesaid CCTV footage, the Investigating Officer concluded that applicant was with doctor Ajitabh and therefore, the present applicant cannot be said to be the author of the fatal gun shot injuries sustained by the deceased as the very presence of the applicant at the time and place of occurrence is not established in the crime in question.
8. Learned counsel for applicant then submits that the widow of deceased in her statement under section 161 Cr.P.C. during the course of investigation of case crime number 11 of 2023 has nominated Avnind Narayan Mishra, Ajitabh and Jethani of the widow of deceased in the crime in question.
9. Learned counsel for applicant has then taken the court to the site plan as well as the X-ray report of the deceased. On the above premise, he submits that as per the site plan the presence of alleged eye-witnesses is not shown in the site plan. Moreover, as per the X-ray report the deceased has sustained injury on his person in which the bullet is shown traveling downwards penetrating T11 and T12 and fracturing the vertebra. The entry wound of gun shot injury sustained by the deceased is on the right side of the body of the deceased. However, as per the material accompanying the case diary one bullet was recovered by the Investigating Officer from the tin container kept in the shop of the general merchant Chandra Bhusan. As per the site plan the said shop is situate at a far away distance from the place of occurrence. He also contends that none of the eye-witnesses are shown to be present at the time of occurrence. Tanni Mistri and Akhilesh Singh @ Munna who are alleged to be eye-witnesses of the occurrence have however in their statements have clearly stated they have not witnesses the act of firing upon the deceased. Only after they heard the sound of gun shots that they came to be know of the occurrrence. As such, there is no eye-witness of the occurrence in question.
10. On the aforesaid conspectus, it is thus urged by the learned counsel for applicant that the case of present applicant is clearly distinguishable from the statement of the brother of the first informant namely Ajitabh Narayan Mishra, inasmuch as the applicant cannot be said to be the author of the fatal gun shot injury sustained by the deceased.
11. 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 20.1.2023. As such, he has undergone more than one year and two months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, upto this stage, no such, circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that 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.
12. Per contra, the learned A.G.A. has opposed the prayer for bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
13. 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 prima facie the recital occurring in paragraph 3 at internal page 3 of the order dated 4.7.2023, is incorrect, inasmuch as the names of Vikas Mishra and Suvash Mishra as authors of gun shot injuries sustained by the deceased has emerged in the statement of the brother of first informant, which was recorded after 20 days of the occurrence, since there is delay in recording the statement of this witness, therefore by virtue of the law laid down by the Apex Court in Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96 the said statement is not worthy of reliance, subsequent to the F.I.R. giving rise to present application for bail, another F.I.R. was lodged by the widow of deceased and registered as Case Crime No. 223 of 2023 in which Doctor Ajitabh Mishra has been nominated as named accused, while investigating aforesaid case crime number which came into existence subsequent to the F.I.R. lodged by the widow, the Investigating Officer has recovered the CCTV footage, the description of which is at page 93 of the paper book, wherein applicant is seen with Dr. Ajitabh Mishra, the clean antencedents of applicant, the period of incarceration undergone, the alleged eye-witnesses namely Tanni Mistri and Akhilesh Singh @ Munna have clearly stated that they have not witnessed the act of firing, the inherent contradictions in the prosecution story as evident from the site plan therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without making any comments on the merits of the case, applicant has made out a case for bail.
14. Accordingly, the bail application is allowed.
15. Let the applicant-Subas Mishra, be released on bail in the aforesaid case crime number 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/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
16. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 15.5.2024 Imtiyaz