Shilpu v. State of U.P.). For ready reference, the order dated
Case Details
Court No. - 64 Case :- CRIMINAL MISC. BAIL CANCELLATION APPLICATION No. - 56 of 2024 Applicant :- Surya Pratap Sngh Opposite Party :- State Of Up Another Counsel for Applicant :- Niraj Tiwari,Rohit Tiwari Counsel for Opposite Party :- G.A.,Karan Singh Yadav Hon'ble Rajeev Misra,J. 1. Heard Mr. Niraj Tiwari, the learned counsel for applicant-first informant, the learned A.G.A. for State and Mr. Karan Singh Yadav, the learned counsel representing accused-opposite party-2. 2. Perused the record.
Facts
3. This application for cancellation of bail has been filed by applicant-first informant-Surya Pratap Singh seeking cancellation of bail granted in favour of accused-opposite party-2, vide order dated 03.08.2023 passed in Criminal Misc. Bail Application No. 31817 of 2023 (Pushpraj Sing @ Shilpu Vs. State of U.P.). For ready reference, the order dated 03.08.2023 is reproduced herein under:-
Legal Reasoning
12. The accused are guilty of causing the murder of deceased Mahendra Singh. As such no sympathy be shown by this Court in favour of applicant. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State, Mr. Awadhesh Kumar Shukla, the learned counsel representing first informant and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that the applicant is not named but a charge sheeted accued, the case of the resent applicant is similar and identical to that of co-accused who is named but a charge sheeted accused i.e. Karan Singh @ Kallu, no such distinguishing feature could be pointed out by the learned A.G.A. or the learned counsel for first informant to distinguish the case of the present applicant from that of not named but charge sheeted and bailed out co- accused Karan @ Kallu, in spite of the fact that the charge sheet has been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant, the judgment of the Supreme Court in Sumit Subhash Chandra Gangwal and another Vs. State of Maharashtra and another 2023 Live Law SC 373(5), clean antecedents of applicant, period of incarceration undergone, but without making any comments on the merits of the case the applicant has made out a case for bail. 14. Accordingly, the bail application is allowed. 15. Let the applicant Pushpraj Singh @ Shilpu involved in Case Crime No. 61 of 2023, under Sections 302, 504, 506 IPC, Police Station Tahrauli, District Jhansi be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/ intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. x. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. 16. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court." 4. Learned counsel for applicant-revisionist submits that the bail application on behalf of accused-opposite party-2 was filed before this Court on the foundation that applicant is a man of clean antecedents having no criminal history to his credit except the present one. In support of above, attention of the Court was invited to paragraph 31 of the affidavit filed in support of the bail application. 5. With reference to above, the learned counsel for applicant-first informant contends that an incorrect statement of fact was made in aforementioned affidavit inasmuch as, accused-opposite party-2 has criminal history of one case i.e. Case Crime No. 15 pf 2017, under Sections 341, 392, 394 IPC, Police Station-Tikamgarh, District-Tikamgargh, Madhya Pradesh. 6. On the above premise, the learned counsel for applicant-first informant contends that since the bail application was filed before this Court without disclosing true and correct facts qua the criminal history of accused-opposite party-2, therefore, the bail granted to accused-opposite party-2 is liable to be called/cancelled. 7. When confronted with above, Mr. Karan Singh Yadav, the learned counsel representing accused-opposite party-2 contends that it is true that no categorical averment was made regarding aforementioned case crime number, which was lodged against applicant. However, subsequently, applicant has been acquitted of the charges alleged against him, by means of aforementioned case crime number, by means of judgment and order dated 29.08.2018 passed in Sessions Case No. 79 of 2017 (State Vs. Pushpraj Singh @ Shilpu and 2 Others). He, therefore, contends that even if, the fact with regard to aforementioned case crime number was not disclosed in the affidavit filed in support of application for bail, yet such non disclosure shall not amount to material concealment on the ground that even if, this fact is taken into consideration, the same is not goving to have any material effect on the conclusion earlier drawn by this Court. Attention of the Court was then invited to the judgments of Supreme Court in Brijmani Devi Vs. Pappu Kumar and Anohter, (2022) 4 SCC 497 and Prabhakar Tewari Vs. State of U.P., (2020) 11 SCC 648 and on basis thereof, the learned counsel for accused-opposite party-2 contends that bail cannot be denied to an accused simply on the ground of criminal history. On the above conspectus, the learned counsel representing accused-opposite party-2 submits that since the applicant has neither jumped the jail nor he has terrorize the witnesses, therefore, no good ground has been made out to cancel the bail earlier granted to accused-opposite party-2. 8. When confronted with above, the learned counsel for applicant- first informant could not overcome the same. 9. Having heard the learned counsel for applicant-first informant, the learned A.G.A. for State, Mr. Karan Singh Yadav, the learned counsel representing accused-opposite party-2 and upon perusal of record, this Court finds that the solitary ground urged in support of this application for cancellation of bail does not appears to sufficient in view of the fact noted herein above so as to cancel the bail granted to accused-opposite party-2. 10. As a result, this application for cancellation of bail fails and is liable to be rejected. 11. It is, accordingly, rejected. Order Date :- 6.8.2024 Vinay
Arguments
"1. Heard Mr. Karan Singh Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Awadhesh Kumar Shukla, the learned counsel representing first informant. 2. Perused the record. 3. This application for bail has been filed by the applicant Pushpraj Singh @ Shilpu seeking his enlargement on bail in Case Crime No. 61 of 2023, under Sections 302, 504, 506 IPC, Police Station Tahrauli, District Jhansi during the pendency of trial. 4. Record shows that in respect of an incident which is alleged to have occurred on 17.4.2023 in which one person namely Mahendra Singh Ghosh sustined injury. Thereafter the injured Mahendra Sing Ghosh was admitted in a hospital for medical treatment. As per the Medico-Legal Report the injured had sustained two injuries on his person. Subsequently injured succumbed to the injury sustained by him. The information regarding the death of the injured was given by Bhailal. On the aforesaid information the inquest (panchnama) of the body of the deceased was conducted. In the opinion of the witnesses of inquest (panch-witnesses), the nature of death of the deceased was characterized as homicidal. Thereafter the first informant namely Surya Pratap Singh (brother of the deceased) lodged an F.I.R. dated 18.4.2023, which was registered as Case Crime No. 0061 of 2023, under Sections 307, 504, 506 IPC, Police Station Tahrauli, District Jhansi. In the aforesaid F.I.R two persons namely (i) Surjeet Singh @ Basant Ghosh and (ii) Tej Ram have been nominated as named accused, whereas two unknown persons have also been arraigned as accused. 5. The gravamen of the allegations made in the F.I.R. is to the effect that named/not named accused who were armed with hammer and danda assaulted the brother of the first informant repeatedly on account of which he sustained injuries. The occurrence in question was witnessed by the first informant and his nephew namely Pankaj who were riding motor cycle and were going to Tehrauli. The F.I.R. further records that the inured has been admitted to the hospital. 6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr.P.C. The doctor who conducted autopsy of the body of the deceased found following ante-mortem injuries on the body of the deceased. A. Stitches wound present on left parietal region of head size 6cm, 5 stitches present on wound, 11 cm. above from left ear tragus on removing of stitches face and clotted blood present under the skin, fracture of left temporal bone seen, on removing of baone fracture, brain tissue lacerated and fresh and clotted blood present below the fracture. B. Stitches wound on right side of head size 33cm. external from right ear tragus 2cm. above upto occipital region of head (upward and backward) and forward on forehead, 10cm. above from right eyebrow. 64 metal, stitches present on wound. On removed of stitches there is missing of skull bone, size 17cm. X 12cm., brain tissue lacerated, fresh and clotted blood present. C. Stitches wound on right side of abdomen 6cm. lateral side from umbilicus, 16 metal stitches present on the wound, on removing of stitches skull bone size 17cm. X 12cm. present in abdominal wound between muscle and skin. D. Abrasion on left elbow size 1cm. X 1cm. E. Abrasion on right forearm size 4cm. X 2 cm., 13cm. below from right elbow. F. Abrasion on lateral side of right knee size 3cm. X 2cm. 7. In the opinion of the autopsy surgeon the cause of death of deceased was shock and hemorrhage due to ante-mortem injury. 8. During the course of investigation, Investigating Officer first examined Pankaj. However this witness did not implicate the applicant in the crime in question. He took the names of only two of the named accused and the rest of the not named accused were identified by him. Subsequently, statement of the first informant was recorded. However the first informant in his statemet has categorically implicated the present applicant also in the crime in question. Thereafter the second statement of Pankaj was recorded wherein he has implicated the applicant also in the crime in question. On the basis of above as well as the statements of other witnesses including two eye witnesses namely Than Singh and Ramakant Investigating Office came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 30.5.2023, whereby the named accused as well as the applicant and Karan Singh @ Kallu have been charge sheeted under Sections 302, 504, 506 IPC. 9. At the very outset, the learned counsel for applicant contends that not named accused Karan Singh @ Kallu has already been enlarged on bail by this Court vide order dated 11.7.2023 passed in Criminal Misc. Bail Application No. 25631 of 2023. For ready reference, the same is extracted hereinunder:- "1. Heard learned counsel for the applicant, learned A.G.A for the State, learned counsel for the informant and perused the record. 2. The story in brief is that on 7.04.2023 at about 2 P.M., the informant's brother namely Mahendra Singh Ghosh was returning after dating from Tehsil Tehrauli, as soon as, he reached near canal culvert, the two accused persons namely Surjeet Singh alias Basant Ghosh and Tej Ram and two unknown persons stopped his motor cycle and had assaulted him with hammer and danda on his head and on the body, due to which, he fell down. The informant's nephew, namely, Pankaj who was going to Tehrauli saw all the accused persons were assaulting the informant's brother, thereafter they ran away after seeing the him. The injured Mahendra Singh was admitted in his hospital, who succumbed to injuries. The incident took place due to family partition. 3. Learned counsel for the applicant submits that the accused persons including the applicant as well as informant are of the same family and partition dispute was going on between them, which is admitted fact from the perusal of the F.I.R. version. He further submits that the applicant is not named in the F.I.R. and his name surfaced after four days from the date of lodging of the F.I.R. in the statement of the Surya Pratap Singh-the informant, wherein he has categorically stated that the accused persons i.e. Surjeet Singh alias Basant Ghosh, Tej Ram, Pushpraj Singh alias Silpu and Karan Singh alias Kalloo (applicant) had assaulted the deceased. He further submits that eye-witness namely, Pankaj Ghosh has not named the applicant in his statement recorded under Section 161 Cr.P.C.but has named the applicant in his Majeed statement. In the question-answer, the reply to the question put up as to why he has not named the two unknown accused person in his earlier statement was that though, he recognised their faces but when their names have been told by their uncle Surya Pratap, only then he came to know about their names. Learned counsel argued that the pedigree of the informant and the applicant's family belongs are same and partition dispute is already going on, thus it is very strange that the informant as well as eye-witness are not aware of their names, which itself shows that the applicant has been falsely implicated in the present case. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 23.04.2023, having no criminal history. 4. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that as per post mortem report, there are as many as six injuries and that the innocence of the applicant cannot be adjudged at pre trial stage therefore, he does not deserve any indulgence. 5. As has been argued by learned counsel for the applicant that the applicant and the informant are of the same family and partition dispute is going on. Perusal of the record shows that the applicant was neither named in the F.I.R. nor in the statement of the eye-witness, who is nephew of the informant, in his statement recorded under Section 161 Cr.P.C. inspite of the fact, that they are relative but the applicant's name has been introduced only in the Majeed statement of the eye-witness only when the name of the applicant was told by the informant. It is very surprising that the eye- witness do not know the name of the applicant, when they are relative and partition dispute is going on, which could not be disputed by learned counsel for the informant thus, the case of the applicant is distinguishable from the case of the named accused persons. 6.After perusing the record 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, the nature of evidence, the case of the applicant is distinguishable from the case of named co-accused persons and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view, that the applicant may be enlarged on bail. 7. Let applicant Karan Singh @ Kallu involved in Case Crime No. 61 of 2023 under Sections 302, 504, 506 I.P.C., Police Station Tahrauli, District Jhansi, be released on bail on furnishing a personal bond and two heavy 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. 8. 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 in accordance with law. 9. The bail application is allowed. " 10. On the above premise, the learned counsel for applicant contends that the case of present applicant is similar and identical to aforesaid not named and charge sheeted but bailed out co-accused. There is no such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforesaid not named charge sheeted but bailed out co-accused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons recorded in the bail order of Karan Singh @ Kallu applicant is also liable to be enlarged on bail. 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 since23.4.2023. As such has has undergone more than three months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore the entire evidence sought to be relied upon by the prosecution against the applicant stands crystallized. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial. He, therefore, submits 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 cooperate with the trial. 11. Per contra, the learned A.G.A. and Mr. Awadhesh Kumar Shukla, the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that even though applicant is not named in the F.I.R. but a charge sheeted accused, therefore he does not deserve any indulgence by this Court. Criminality committed by charge sheeted accused i.e. both named and not named is joint and common. Therefore, it is incapable of being separated or segregated. The bail application of named / charge sheeted accused namely Tejram @ addu has already been rejected by this Court vide order dated 11.7.2023 passed in Criminal Misc. Bail Application No. 25645 of 2023. For ready reference, the same is reproduced hereinunder:- "1. Heard learned counsel for the applicant, learned A.G.A for the State, learned counsel for the informant and perused the record. 2. The story in brief is that on 7.04.2023 at about 2 P.M., the informant's brother namely Mahendra Singh Ghosh was returning after dating from Tehsil Tehrauli, as soon as, he reached near canal culvert, the two accused persons namely Surjeet Singh alias Basant Ghosh and Tej Ram (applicant) and two unknown persons stopped his motor cycle and had assaulted him with hammer and danda on his head and on the body, due to which, he fell down. The informant's nephew, namely, Pankaj who was going to Tehrauli saw all the accused persons were assaulting the informant's brother, thereafter they ran away after seeing the him. The injured Mahendra Singh was admitted in his hospital, who succumbed to injuries. The incident took place due to family partition. 3. Learned counsel for the applicant submits that the accused persons including the applicant as well as informant are of the same family and partition dispute was going on between them, which is admitted fact from the perusal of the F.I.R. version. He further submits that as per medical report prepared by Maharani Laxmi Bai Medical College, the injured/deceased sustained only two injury whereas in the post mortem report six injuries were found on the person of the deceased. He further submits that earlier the deceased Mahendra Ghosh and his brother Arvind attacked upon the applicant and th co-accused Pushpraj and in this regard complaint was filed before the learned Additional Chief Judicial Magistrate Erach, Jhansi. He further argued that there is no independent eye witness to demonstrate that the applicant had caused injury. He next submits that the applicant has not been assigned any specific weapon by which he assaulted the deceased rather it has been stated that the accused persons armed with hammer and danda. It is thus contended that the applicant has been falsely implicated in the present case. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been mentioned. It has also been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. He next submits that applicant is languishing in jail since 23.04.2023, having no criminal history. 4. Per contra, learned A.G.A. as well as learned counsel for the informant have opposed the prayer for bail of the applicant by contending that applicant is named in the F.I.R. and specific role of assault has been assigned to the applicant by the informant as well eye-witness. As per post mortem report, there are as many as six injuries and that the innocence of the applicant cannot be adjudged at pre trial stage therefore, he does not deserve any indulgence. 5. Learned counsel for the applicant could not point out any good ground for enlargement of the applicant on bail in Case Crime No.61 of 2023 under Sections 302, 504, 506 I.P.C. Police Station Tahrauli, District jhansi. Thus keeping in view submissions of learned counsel for the parties, gravity of offence, nature of allegations and all the attending facts and circumstances of the case, without expressing any opinion on the merits of the case, no case for bail has been made out. 6. Accordingly, the bail application of applicant-Tejram @ Addu is rejected. "