High Court · 2025

Applicant :- Vikram Prasad @ Vikki Opposite Party :- State of U.P. Counsel for Applicant :- Ganesh Shanker Srivastava,Ghan Shyam Yadav,Kamalesh Kumar Nishad,Ram Awadh Maurya Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J. Heard learned counsel for the applicant and Mr. Deepak Mishra, learned Additional Government Advocate representing the State. This is a second bail application. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 17.02.2023 in Criminal Misc Bail Application No.660 of 2022. By means of this second bail application under Section 439 of Cr.P.C., applicant- Vikram Prasad @ Vikki, who is involved in Case Crime No.57 of 2021, under Sections 147, 148, 149, 323, 504, 506, 324, 307, 302 I.P.C., Police Station Chilihiya, District Siddharth Nagar seeks enlargement on bail during the pendency of trial. As per prosecution case, in brief, the informant Sanjay Chaudhary, who is brother of deceased-Ajay lodged a F.I.R. on 01.07.2021 at about 22:30 O' Clock with regard to the incident which took place on same day i.e. on 01.07.2021 at about 20:00 O' Clock against six accused persons, namely, Vikki alias Vikram (present applicant), Indrajeet @ Chinku, Sumer, Durgesh, Mukesh and Rajesh @ Chhotu alleging inter-alia that on 01.07.2021 at about 08:00 PM, when his brother-Vijay came home after selling fish and seeing the dog he abused and said today I will beat you with stick. On hearing abuse, his neighbour Vicky @ Vikram started abusing the deceased. When the deceased asked him not to abuse, Vicky @ Vikram, Indrajeet @ Chinku, Durgesh, Sumer, Mukesh and Rajesh @ Chhotu with a common intention, started beating his brother with lathi, danda and axe. On hearing his brother's scream, when his father Somai, uncle Guru Prasad and brother Ajay came there to save him, then accused persons also badly beaten them. During this time, Vicky @ Vikram attacked/assaulted his brother-Ajay with axe with intention to kill him. All the injured people were immediately taken to the District Hospital, Siddharth Nagar with the help of villagers for their treatment. The accused persons fled away from the spot by threatening. Main substratum of argument of learned counsel for the applicant is that general role of assault and causing injuries to the deceased and other injured has been assigned to all the accused persons. The applicant is languishing in jail since 03.07.2021 but till date his trial has not been concluded and only five prosecution witnesses have been examined, who in their cross-examination recorded before the trial Court have not attributed any specific role to the applicant for causing injury to the deceased. The other co-accused, namely, Indrajeet @ Chinku, Durgesh, Sumer, Mukesh have been granted by a co- ordinate Bench of this Court vide order dated 09.02.2022 passed in Criminal Misc. Bail Application No. 37064 of 2021 and co-accused Rajesh has been granted bail by order dated 22.02.2022 passed in Criminal Misc. Bail Application No. 36796 of 2021, therefore, the applicant may also be enlarged on bail. On the other hand, learned Additional Government Advocate vehemently opposed the prayer for bail of the applicant by contending that in the F.I.R. dated 01.07.2021 itself, specific role of causing injury with axe to the deceased has been assigned to the present applicant-Vikram Prasad @ Vikki. After examination, injured-Ajay was referred to Medical College, Gorakhpur, where during his treatment, he succumbed to the injury. Referring the examination- in-chief of the complainant, who has been examined as P.W.-1 before the trial court on 04.10.2023, it is pointed out that so far as role of the applicant is concerned, P.W.-1 has clearly stated that the applicant while going from the spot assaulted his brother-Ajay on his head with axe and the said statement is fully corroborated from the post- mortem report of the deceased, wherein it was found that the deceased has received incised wound and cause of death of the deceased is ante-mortem injury. On the strength of the aforesaid submission, it is further argued that the prosecution case against the applicant is very much specific and role of causing injury to the deceased with axe has been specifically assigned to the present applicant and general role of assault has been assigned to rest of the accused persons. Hence, the case of the present applicant is distinguishable from the case of other co-accused persons. It is also submitted that in the said incident, four persons have received injuries and considering the nature of injuries of the injured persons as well as injury of the deceased, it cannot be said that the applicant has been falsely implicated. Lastly, it is submitted that recently the Apex Court, in the case of X Vs. State of Rajasthan and another, 2024 SCC OnLine SC 3539 has held that if the trial of the accused has started, his bail should not be granted in heinous offences like murder, rape and dacoity. Since the offence is heinous in nature and trial of the applicant has started, therefore, the bail application of the applicant liable to be rejected. Having heard learned counsel for the parties and perusing the record, I find that it is not in dispute that in the F.I.R. as well as in the examination-in-chief of P.W.-1/complainant, specific role of causing head injury to the deceased-Ajay with axe has been attributed to the present applicant-Vikki alias Vikram, which is corroborated from the post-mortem report of the deceased. So far as the submission of learned counsel for the applicant that other co-accused persons have been granted bail is concerned, I find that while considering the bail of co-accused persons, namely, Durgesh, Sumer, Mukesh and Rajesh, it was the specific case on behalf of prosecution that role of assault with axe to the deceased has been attributed to co-accused Vikram Prasad @ Vikki and while considering the bail of co- accused Indrajeet @ Chinku also the co-ordinate Bench has considered the fact that principal offender who inflicted the fatal blow on the deceased-Ajay was one Vikki @ Vikram. The case of the applicant is distinguishable from the case of other co-accused, hence benefit of parity cannot be extended to the present applicant. I also find that statement of five prosecution witnesses have already been recorded, who have supported the prosecution case and trial is proceeding. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances. The issue regarding the evidentiary value of examination-in-chief of such witnesses, who had turned hostile in their cross-examination, has been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross- examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution. This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. Since the allegation of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not effect the merits of the trial. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail. Accordingly, the bail application is rejected. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 18.3.2025//Sanjeet SANJEET KUMAR YADAV High Court of Judicature at Allahabad

Applicant :- Vikram Prasad @ Vikki Opposite Party :- State of U.P. Counsel for Applicant :- Ganesh Shanker Srivastava,Ghan Shyam Yadav,Kamalesh Kumar Nishad,Ram Awadh Maurya Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Singh,J. Heard learned counsel for the applicant and Mr. Deepak Mishra, learned Additional Government Advocate representing the State. This is a second bail application. The first bail application of the applicant was dismissed for want of prosecution by this Court vide order dated 17.02.2023 in Criminal Misc Bail Application No.660 of 2022. By means of this second bail application under Section 439 of Cr.P.C., applicant- Vikram Prasad @ Vikki, who is involved in Case Crime No.57 of 2021, under Sections 147, 148, 149, 323, 504, 506, 324, 307, 302 I.P.C., Police Station Chilihiya, District Siddharth Nagar seeks enlargement on bail during the pendency of trial. As per prosecution case, in brief, the informant Sanjay Chaudhary, who is brother of deceased-Ajay lodged a F.I.R. on 01.07.2021 at about 22:30 O' Clock with regard to the incident which took place on same day i.e. on 01.07.2021 at about 20:00 O' Clock against six accused persons, namely, Vikki alias Vikram (present applicant), Indrajeet @ Chinku, Sumer, Durgesh, Mukesh and Rajesh @ Chhotu alleging inter-alia that on 01.07.2021 at about 08:00 PM, when his brother-Vijay came home after selling fish and seeing the dog he abused and said today I will beat you with stick. On hearing abuse, his neighbour Vicky @ Vikram started abusing the deceased. When the deceased asked him not to abuse, Vicky @ Vikram, Indrajeet @ Chinku, Durgesh, Sumer, Mukesh and Rajesh @ Chhotu with a common intention, started beating his brother with lathi, danda and axe. On hearing his brother's scream, when his father Somai, uncle Guru Prasad and brother Ajay came there to save him, then accused persons also badly beaten them. During this time, Vicky @ Vikram attacked/assaulted his brother-Ajay with axe with intention to kill him. All the injured people were immediately taken to the District Hospital, Siddharth Nagar with the help of villagers for their treatment. The accused persons fled away from the spot by threatening. Main substratum of argument of learned counsel for the applicant is that general role of assault and causing injuries to the deceased and other injured has been assigned to all the accused persons. The applicant is languishing in jail since 03.07.2021 but till date his trial has not been concluded and only five prosecution witnesses have been examined, who in their cross-examination recorded before the trial Court have not attributed any specific role to the applicant for causing injury to the deceased. The other co-accused, namely, Indrajeet @ Chinku, Durgesh, Sumer, Mukesh have been granted by a co- ordinate Bench of this Court vide order dated 09.02.2022 passed in Criminal Misc. Bail Application No. 37064 of 2021 and co-accused Rajesh has been granted bail by order dated 22.02.2022 passed in Criminal Misc. Bail Application No. 36796 of 2021, therefore, the applicant may also be enlarged on bail. On the other hand, learned Additional Government Advocate vehemently opposed the prayer for bail of the applicant by contending that in the F.I.R. dated 01.07.2021 itself, specific role of causing injury with axe to the deceased has been assigned to the present applicant-Vikram Prasad @ Vikki. After examination, injured-Ajay was referred to Medical College, Gorakhpur, where during his treatment, he succumbed to the injury. Referring the examination- in-chief of the complainant, who has been examined as P.W.-1 before the trial court on 04.10.2023, it is pointed out that so far as role of the applicant is concerned, P.W.-1 has clearly stated that the applicant while going from the spot assaulted his brother-Ajay on his head with axe and the said statement is fully corroborated from the post- mortem report of the deceased, wherein it was found that the deceased has received incised wound and cause of death of the deceased is ante-mortem injury. On the strength of the aforesaid submission, it is further argued that the prosecution case against the applicant is very much specific and role of causing injury to the deceased with axe has been specifically assigned to the present applicant and general role of assault has been assigned to rest of the accused persons. Hence, the case of the present applicant is distinguishable from the case of other co-accused persons. It is also submitted that in the said incident, four persons have received injuries and considering the nature of injuries of the injured persons as well as injury of the deceased, it cannot be said that the applicant has been falsely implicated. Lastly, it is submitted that recently the Apex Court, in the case of X Vs. State of Rajasthan and another, 2024 SCC OnLine SC 3539 has held that if the trial of the accused has started, his bail should not be granted in heinous offences like murder, rape and dacoity. Since the offence is heinous in nature and trial of the applicant has started, therefore, the bail application of the applicant liable to be rejected. Having heard learned counsel for the parties and perusing the record, I find that it is not in dispute that in the F.I.R. as well as in the examination-in-chief of P.W.-1/complainant, specific role of causing head injury to the deceased-Ajay with axe has been attributed to the present applicant-Vikki alias Vikram, which is corroborated from the post-mortem report of the deceased. So far as the submission of learned counsel for the applicant that other co-accused persons have been granted bail is concerned, I find that while considering the bail of co-accused persons, namely, Durgesh, Sumer, Mukesh and Rajesh, it was the specific case on behalf of prosecution that role of assault with axe to the deceased has been attributed to co-accused Vikram Prasad @ Vikki and while considering the bail of co- accused Indrajeet @ Chinku also the co-ordinate Bench has considered the fact that principal offender who inflicted the fatal blow on the deceased-Ajay was one Vikki @ Vikram. The case of the applicant is distinguishable from the case of other co-accused, hence benefit of parity cannot be extended to the present applicant. I also find that statement of five prosecution witnesses have already been recorded, who have supported the prosecution case and trial is proceeding. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances. The issue regarding the evidentiary value of examination-in-chief of such witnesses, who had turned hostile in their cross-examination, has been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross- examination, the testimony in examination-in-chief cannot be outright discarded provided the same (statement in examination-in-chief supporting prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution. This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man may tell lie but record and circumstances do not. Since the allegation of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not effect the merits of the trial. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail. Accordingly, the bail application is rejected. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial. Order Date :- 18.3.2025//Sanjeet SANJEET KUMAR YADAV High Court of Judicature at Allahabad