High Court
Case Details
Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6030 of 2022 Applicant :- Mitthu Yadav Opposite Party :- State of U.P. Counsel for Applicant :- Janardan Yadav Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Janardan Yadav, learned counsel for the applicant, Ms. Sunita Chauhan, learned counsel for the first informant, Sri B.B. Upadhyay, learned AGA for the State and perused the material on record. Ms. Sunita Chauhan is permitted to file her Vakalatnama on behalf of the first informant in the office during the course of the day. If any such vakalatnama is filed by Ms. Sunita Chauhan, office is directed to restore the same in the file and make a note in the order sheet about it. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Mitthu Yadav, seeking enlargement on bail during trial in connection with Case Crime No. 134 of 2021, under Sections 147, 304, 323, 504, 506 I.P.C. registered at P.S. Saraimeer, District Azamgarh. The First Information Report of the present case was lodged on 14.10.2021 at about 09:32 hours under Sections 147, 302, 323, 504, 506 I.P.C. by Dayaram Yadav against the applicant Mitthu Yadav and four other accused persons namely Lalbahadur Yadav, Subhawati, Satyendra and Dewas, with the allegation that on 14.10.2021 at about 6.30 P.M. his wife Smt. Guddi was throwing cow dung of which the applicant along with the co- accused persons armed with lathi and danda, came there and started assaulting her. The first informant tried to save her and intervened on which he was also assaulted by the accused persons. His wife was beaten after which she died. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that common and general role of assault has been assigned to the applicant along with four other accused persons. It is argued that as per the post mortem examination report the deceased has received abrasion of 5x3 cm on top of the shoulder. There is no other bodily injury on her person. Even there is no internal damage seen in the post mortem examination. The cause of death has been opined by the doctor as shock due to ante mortem cardiac arrest. It is argued that the same does not in any manner corroborate with the prosecution case. It is argued that the first informant Dayaram Yadav was also medically examined on 14.10.2021 at about 11.00 A.M. who had complaint of bodyache only. It is argued that the doctor has opined it to be simple in nature. It is argued that there is no other bodily injury on the person of the first informant. Lerned counsel has further argued that identically placed co-accused Satyendra Yadav has been granted bail by a co-ordinate Bench of this Court vide order dated 19.1.2022 passed in Criminal Misc. Bail Application No. 239 of 2022, Satyendra Yadav vs. State of U.P., copy of said order is annexure no. 7 to the affidavit. It is argued while placing para-10 of the affidavit that the applicant was falsely implicated by the first informant of the present case in a case being N.C.R. No. 74 of 2013, under Sections 323, 504, 506 I.P.C., P.S.- Saraimeer, District Azamgarh in which charge sheet was filed in the year 2013 and the applicant is on bail and the trial is going on. It is argued that the applicant is aged about 65 years and is suffering from old age diseases, for which para-11 of the affidavit has been placed before the Court. Further it is argued that although the F.I.R. was lodged under Section 302 I.P.C. along with other sections but during investigation Section 302 I.P.C. was converted into Section 304 I.P.C. It is argued that the applicant has no other criminal antecedents as stated in para-12 of the affidavit and is in jail since 12.10.2020. Per contra, learned State counsel and learned counsel for the first informant opposed the prayer for bail and argued that the applicant is named in the F.I.R. and there are allegation of assault upon the deceased and the first informant by him along with other co-accused persons. It is argued that Jay Singh son of the first informant was interrogated who has stated that the applicant assaulted the deceased. It is argued that the applicant has a criminal history of one case in which the deceased of the present case was a witness which was the motive for her murder. It is prayed that the prayer for bail be rejected. After having heard learned counsels for the parties and perusing the record, it is evident that common and general role has been assigned to the applicant along with other co-accused persons. The case is of assault by lathi and danda by all the accused persons including the applicant on the deceased. The post mortem examination report does not corroborate with the prosecution story. The first informant has not received any injury on his body. The co-accused Satyendra Yadav has been granted bail by a co-ordinate Bench of this Court. Looking to the facts and circumstances of this case, the nature of evidence 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. Let the applicant- Mitthu Yadav, 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 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 bail application is allowed. Order Date :- 21.2.2022 Naresh (Samit Gopal,J.) Digitally signed by NARESH KUMAR Date: 2022.02.22 18:22:36 IST Reason: Location: High Court of Judicature at Allahabad