High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17015 of 2021 Applicant :- Munna @ Pradeep Belauhan Opposite Party :- State of U.P. Counsel for Applicant :- Sonu Kumar Tiwari,Prabha Shanker Mishra Counsel for Opposite Party :- G.A.,Utsav Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45732 of 2021 Applicant :- Baua Opposite Party :- State of U.P. Counsel for Applicant :- Sonu Kumar Tiwari Counsel for Opposite Party :- G.A.,Utsav Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. S.K. Tiwari, learned counsel for applicant, learned A.G.A. for State and Mr. G.A. Utsav, learned counsel for informant. These applications for bail have been filed by applicants Munna @ Pradeep Belauhan and Baua seeking their enlargement on bail in Case Crime No. 180 of 2020, under section 323, 324, 504, 304 IPC, Police Station Mau, District Chitrkoot during the pendency of trial. Criminal Misc. Bail Application No. - 45732 of 2021 came up for orders on 2.11.2021, this Court passed the following order: "Put up as fresh on 8.11.2021 alongwith Criminal Misc. Bail Application No. 17015 of 2015, showing the name of Sri Utsav, as counsel for the opposite party."
Decision
Pursuant to aforesaid order, above mentioned bail applications have been connected and listed together. Since all the bail applications arise out of the same case crime number, therefore, they have been heard together and are being disposed of finally by a common order. Record shows that in respect of an incident which is alleged to have occurred on 23.8.2020, a prompt F.I.R. dated 23.8.2020 was lodged by first informant Smt. Surtiya and was registered as Case Crime No. 180 of 2020, under sections 323, 324, 504, 304 IPC, Police Station Mau, District Chitrkoot. In the aforesaid F.I.R. three persons namely, Munna @ Pradeep Bailoha, Baua and Nan have been nominated as named accused. In brief, according to the prosecution story as unfolded in F.I.R., it is alleged that named accused with a common object armed with Lathi and Sickles assaulted the husband of first informant, son of first informant and niece of first informant. On account of the criminality committed by accused persons, Rambhavam sustained injuries. He ultimately, succumbed to the injuries sustained by him, while he was being taken to hospital. After registration of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned Case crime number in terms of Chapter XII Cr.P.C. Subsequent to above, injured Lavkush was medically examined. His medico legal report is on record as Annexure-7 to the affidavit filed in support of present application for bail.As per the aforesaid medico legal report, the injured Lavkush sustained following injuries: "Swelling in palary with writ joint, location-Right hand wrist joint." Thereafter the inquest of the body of deceased was conducted. In the opinion of panch witnesses, the nature of death of deceased was homicidal. Thereafter the post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, cause of death of deceased was Shock and Hemorrhage due to antemortem injury. The autopsy surgeon found following ante-mortem injury on the body of deceased: "(i) L/w over left parietal region over 5 cm above from left ear wound size is 6 x 3 cm underlying bone fractured. (ii)L/W over Rt leg 1 x 1 cm muscullary (iii) Fracture Rt upper arm (iv) Incised wound over Rt ear at two place (v) L/W over left forearm at muscularly part 7 cm x 3 cm (vi) Brusing on tip part left two 2 x 2 cm." On the basis of above and other material collected during course of investigation, which is substantially adverse to applicant, Investigating Officer submitted charge-sheet dated 21.10.2020, whereby named accused has been charge sheeted under sections 323, 324, 504, 304 IPC. After submission of aforesaid Charge sheet, cognizance was taken upon same by Court concerned. As offence complaint of by Court of Sessions, concerned Magistrate, committed the case to the court of Sessions. Resultantly, Sessions Trial No. 453 of 2020 came to be registered. According to learned counsel for first informant up to this stage, P.W.1 Surtiya, P.W.2 Anand Vishvkarma, P.W.3 Teeraj singh and P.W.4 Lavkush have been examined. record. Learned counsel for applicant contends that though applicant is named and charge sheeted accused but he is innocent. Applicant has been falsely implicated. Allegations made in F.I.R. are false and concocted. As such applicant is being falsely prosecuted in aforementioned case crime number. It is then contended that co-acccused Naan who is also a named accused has already been enlarged on bail by this Court vide order dated 7.9.2021. For ready reference same is reproduced hereinunder: "Heard Sri Prabha Shankar Mishra, Advocate holding brief of Sri Sonu Kumar Tiwari, learned counsel for the applicant, Sri Utsav, learned counsel for the first informant and Sri U.P. Singh, learned counsel for the State and perused the material on This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Naan, seeking enlargement on bail during trial in connection with Case Crime No. 180 of 2020, under Sections 323, 324, 304, 504 I.P.C., registered at Police Station Mau, District Chitrakoot. Learned counsel for the applicant argued that the present First Information Report was lodged under Sections 323, 324, 504, 304 IPC on 23.08.2020 naming the applicant, Mannu @ Pradeep Bailauha and Bajva as accused and general and common role have been assigned to all the three accused persons of assault with a hasia and lathi upon the husband of the first informant and her son Lavkush. Her husband was taken to the hospital in an injured condition from where he was referred to a higher centre but on the way to the said hospital Learned counsel has placed before the Court the statement of Lavkush the alleged injured, copy of which is annexed as annexure 8 to the affidavit and has argued that although he has named the applicant and three other co-accused persons but has stated the use of lathi, danda and farsa in the said incident and has stated that co-accused Munna assaulted him with lathi on his hand due to which he received injuries whereas assault on his father was by the accused persons with lathi, danda and farsa. It is argued that in the First Information Report initially there was use of hasia and lathi but in the statement of the alleged injured Lavkush he has stated that the use of lathi, danda and farsa in the present incident in which farsa has been stated where have been used only after going through the injury of the deceased Ram Bhawan in he succumbed injuries. the to of the day. light which there was an incised wound and just to explain the said injury farsa has been stated to have been used along with other objects. It is further argued that Lavkush was medically examined by the doctor, the doctor found a swelling in the palm with wrist joint of the right hand and he was referred for x-ray for further management. The doctor had opined the injury to the above five days old when he was medically examined on 27.08.2020 but till date no x-ray report has seen the It is argued that the deceased although has received six injuries on his body and the cause of death has been opined as shock and hemorrhage due to antimortem injuries. It is argued that as per the prosecution itself, the three co-accused persons have been assigned with assault by lathi and danda upon the deceased and even the injured Lavkush has not specified the weapons and role of the accused persons. He further argued that the applicant has no criminal history as stated in para 20 of the affidavit and is in jail since 24.08.2020. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the First Information Report, he along with two other accused persons armed with deadly weapons being hasia as per the First Information Report and farsa as per the statement of injured Lavkush have committed the incident. It is argued that the accused persons had joined hands together to commit the incident in which the husband of the first informant died and his son received injuries. The prosecution case gets corroboration from the injuries as received by the deceased and injured Lavkush. Learned counsels further stated that although the injured was referred for x-ray examination but till date no x-ray report has come. After having heard learned counsels for the parties and perusing the records, it is evident that in the First Information Report, three accused persons including the applicant have been named and general role of assault by hasia and lathi has been given to them, subsequently, the alleged injured Lavkush in the statement recorded under Section 161 Cr.P.C. stated about the use of lathi, danda and farsa by the three accused persons. There is a change of weapon as per the First Information Report and the statement of alleged injured Lavkush but even therein general and common role has been assigned to all the three accused persons of assault on the deceased. Laukush has assigned the role of assault on him by co-accused 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 Let the applicant Naan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties of the applicant will be his family member) each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed i) The applicant will not tamper with prosecution evidence and justice:- interest Munna lathi. of in bail. the on by I.P.C. 174-A manner whatsoever. 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 (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 (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 (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the 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 The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. " On the aforesaid premise, learned counsel for applicants contends that case of present applicants are similar and identical to co-accused Naan. There is no such distinguishing feature on the basis of which case of present applicants can be distinguished from aforesaid co-accused. He, therefore, contends that for the facts and reasons mentioned in the order dated 7.9.2021, applicants are also liable to be extended the benefit of bail on the ground of parity. It is next contended that all the accused have been assigned general role. There is one deceased and one injured. However, author of the injuries sustained by deceased have not been specified. The injured application applicant. allowed. 229-A IPC. bail is Lavkush, in his statement has nominated accused Munna @ Pradeep Beluhan as the author of injuries sustained by him. But same are simple and not grievous, or fatal in nature. He, therefore, contends that criminality alleged to have been committed have not been specified nor segregated. On the aforesaid premise, learned counsel for applicants contends that applicants be enlarged on bail. It is lastly contended that applicants are men of clean antecedents in as much as they have no criminal history to their credit except the present one. Applicants are in jail since 24.8.2020. As such, they have undergone more than 1 year and seven months of incarceration. In case applicants are enlarged on bail they shall not misuse the liberty of bail and shall co-operate with trial. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicants are named as well as charge-sheeted accused. As such, they do not deserve any sympathy of this Court. Trial is already in progress. Five prosecution witnesses have already been examined. As such, no indulgence be granted by this Court in favour of applicants. However, learned A.G.A. could not dispute the factual and legal submission urged by learned counsel for applicants. Having heard learned counsel for applicants, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicants have made out a case for bail. Accordingly, bail applications are allowed. Let the applicants Munna @ Pradeep Belauhan and Baua, be released on bail in the aforesaid case crime number ontheir 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. Order Date :- 30.3.2022 Arshad Digitally signed by ARSHAD MAHMOOD Date: 2022.04.01 18:36:22 IST Reason: Location: High Court of Judicature at Allahabad