Allahabad High Court
Alladin vs State Of U.P. on 3 August, 2021
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- BAIL No. - 4686 of 2020 Applicant :- Alladin Opposite Party :- State of U.P. Counsel for Applicant :- Sushil Kumar Singh,Atul Kumar Yadav,Haider Mehdi,Panna Lal Gupta,Prabhakar Srivastava,Vivek Tiwari Counsel for Opposite Party :- G.A.,Indrajeet Shukla,Sandeep Kumar Singh Hon'ble Alok Mathur,J.
1. Heard Sri Atul Kumar Yadav, learned counsel for the applicant, Sri Indrajeet Shukla for the private complainant and the learned A.G.A. for the State.
2. The applicant is an accused in case crime No.109 of 2020, under Sections- 323, 352, 504, 506, 452, 302, 201 of IPC, police station Khodare, District Gonda.
3. Learned counsel for applicant has contended that the F.I.R. in this case was lodged on 26.5.2020 wherein it has been stated that on the fateful day in the evening the accused, who were armed with lathi, danda, had started abusing and attacked the complainant. The applicant and one Faisal ran inside the house to protect themselves from attack of the accused but they too entered into the house and assaulted them and it is only on the interference of the villagers that they were saved and consequently the said first information report was lodged. It has been submitted that on the same day, the statement of the complainant was recorded where he has reiterated the contents of the first information report. It is further stated that the uncle of the complainant Faiyaz was missing and could not be traced. Subsequently, it has come on record that on 29.5.2020 body of the uncle of the complainant was recoverer from the house of one of the co-accused Mohd. Umar and consequently another statement was recorded under Section 161 Cr.P.C. where the complainant has improved upon the earlier statement and only general allegations have been stated and that the deceased was also involved in the said dispute and it is only after three days that foul smell was coming from the house of Mohd. Umar and that when his premises was inspected the dead by of the deceased was recovered under stair case.
4. Learned counsel for the applicant has submitted that the said body of the deceased was subjected to post mortem and according to the medical opinion four injuries were detected out of which three were incised and one was contusion. It has been argued by learned counsel for the applicant that with regard to death of Faiyaz this is a case of circumstantial evidence in as much as there is no eye witness to the said incident. He submits that as per the evidence available on record the applicant has been shown to be armed with lathi while the injuries on the deceased does not corroborate with the weapon in the hands of the applicant. Only it is alleged that the danda used in the offence has been recovered but learned counsel for the applicant submits that there is no material which can link the weapon to the said incident. It is further submitted that in the case of circumstantial evidence the entire story of the prosecution is lacking in material particulars and there is no complete chain of events which can link the applicant to the said crime.
5. Lastly, it has been stated that the applicant is languishing in jail since 31st May, 2020 and has thus spent one year in jail and also that he has no criminal history. It is contended that the there is no possibility of the applicant fleeing away from judicial custody or influencing the witnesses and that co-accused Abdullaha has been granted bail by this Court vide order of date passed in Bail Application No.5447 (B) of 2020 and the present applicant is also entitled to be granted bail on the ground of parity.
6. Learned AGA has opposed the prayer for bail but he could not dispute the facts as argued by the counsel for the applicant. Sri Indrajeet Shukla, learned counsel for the private respondent has also opposed the bail application and submitted that the onus lies upon the applicant to show about presence of the body of the deceased in their premises. Learned counsel for the applicant, in response to the said objection, submits that the entire story of the F.I.R. is questionable looking to the fact that on the fateful day deceased Faiyaz got missing and Mohd. Umar one of the accused persons who was also apprehended but there is no explanation as to how the dead body of the deceased was recovered three days after the date of occurrence from the house of Mohd. Umar despite the matter being under active investigation by the team.
7. Without expressing any opinion on the merits of the case, considering the fact that no specific role has been ascribed to the applicant coupled with the fact that the alleged recovered weapon does not corroborate with the injuries and that there is no complete chain of events and the applicant languishing in jail for the last one year and also looking to the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering of the witnesses and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail in this case.
8. Let the applicant,Alladin, involved case crime No.109 of 2020, under Sections- 323, 352, 504, 506, 452, 302, 201 of IPC, police station Khodare, District Gonda be released on bail 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 she would not seek any adjournment on the dates 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) 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. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against his in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 CrPC. 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.
9.Lastly, it has been prayed that after investigation has been concluded the charge sheet has been prepared as far back as on 17.7.2020 and subsequently filed in the court of competent jurisdiction but not much progress has been made by the trial court. In light of the above, the trial court is directed to expedite the trial and not to grant unnecessary adjournment and conclude the same with expedition without being influenced by any of the observations made above.
Order Date :- 3.8.2021 (Alok Mathur, J.) RKM.