High Court
Case Details
Neutral Citation No. - 2023:AHC:132256 Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15383 of 2023 Applicant :- Neeraj Patel Opposite Party :- State of U.P. Counsel for Applicant :- Bipin Kumar Tripathi,Shubham Counsel for Opposite Party :- G.A.,R.P.S. Chauhan Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Heard learned counsel for the applicant, learned A.G.A. and perused the record. The bail application under Section 439 Cr.P.C. has been moved by the applicant - Neeraj Patel to enlarge him on bail in Case Crime No. 76 of 2023 under Sections 307, 323, 504 I.P.C. Police Station Nichlaul, District Maharajganj. It is argued by the learned counsel for the applicant that in the same incident the applicant also sustained injuries. He was tried to be throttled by the first informant Vaishnavi Singh. Because of attempt of this throttling he had apprehension of his life, so in exercise of his right of private defence the gun shot injury was caused to the first informant. He had not gone to the house of the first informant to cause injury rather the first informant had come to assault the accused persons as is clear from the site plan that the incident took place infront of his house. The weapon used in the incident has been recovered from the house of the first informant. The injury on his neck was diagnosed by the doctor immediately after the incident, though, his injury was simple but it was on the vital part of the body and the prosecution is bound to explain this injury. When the first informant/injured tried to throttle him and took out his pistol to make the fire, there was no other way before the applicant except to fire on the injured, in his private defence. As this is the stage of bail, so the accused has not to prove his defence beyond reasonable doubt, mere proving apprehension to his life is enough. His criminal history of two cases has been explained. In the case of the year 2014 he is on bail and regarding case of the year 2010, final report was submitted. The applicant is languishing in jail since 16.02.2023, hence, the prayer for bail is made. Learned counsel for the first informant opposed the prayer of bail and submitted that admittedly both the parties are cousins and neighbours residing in the same village. There is no litigation between them. In the affidavit filed in support of the bail application, fire made by the applicant is admitted. Though, it has been mentioned therein that the first informant/injured was the aggressor, equipped with the licensee pistol. Admittedly, at the time of incident the first informant/injured had fallen in drain. As soon as he tried to take up his licensee pistol, it was snatched by the accused persons. The accused were 04 in number while the first informant/injured was alone on the spot. As soon as the pistol of the injured was snatched by the accused persons the apprehension of life to the applicant gone away. There was no compelling circumstance before the accused persons to make a fire. The injury of the injured is on chest, which is caused by targeting him. The injured sustained three injuries; (i) 4 cm - 5 cm x0.5x1cm lacerated wound on the right parietal aspect of skull (ii) 4 cm x 0.5x1 cm lacerated wound on the frontal parietal aspect of skull (iii) lacerated wound 0.5 cmx0.3 cm on left side of chest, 6 cm below and medial to left nipple. He was first taken to the CHC, then referred to District Hospital and thereafter he was referred to BRD Medical College, Gorakhpur. He was very critical. He remained admitted in the hospital for about one month where his surgery was done. The injury on the neck of the accused was a simple injury, which might have been inflicted at the time of scuffle or at the time of arrest. It may be a self inflicted injury also. It was a simple injury so the prosecution need not to explain it. Learned counsel for the applicant placed before the three judgements and on the basis of all these cases it is claimed that as the prosecution could not explain the injuries of the accused persons, so the benefit of private defence goes to the appellant accused persons. As per the facts of the case in Gottipulla Venkata Siva Subbrayanam and others Vs. The State of A.P. and another, 1970 3 SCR 423, many accused persons were found injured. Accused Gottipulla Venkata Siva Subbrayanam had ten injuries mainly on the head, base of the neck and the shoulders, whose dying declaration was recorded, accused no. 2 sustained 08 injuries on shoulder, parietal area and head, accused no. 3 sustained two injuries including one incised wound on scalp, accused no. 4 sustained fracture, accused no. 5 also sustained four injuries including injuries on parietal bone and two injuries on scalp, accused no. 6 sustained five injuries, who remain in hospital for six days and accused nos. 7 & 8 had simple injuries. As per facts of the case in Criminal Appeal No. 416 of 2016 (arising out of SLP (Crl.) No. 2301 of 2016) - Bhagwan Sahai and others Vs. State of Rajasthan, MANU/SC/0669/2016, there was free fight between both the parties where father of the appellant sustained lacerated wound on scalp. The appellant Bhagwan Sahai also sustained two lacerated wounds including one wound on scalp. Gulab Devi, mother of the appellants, sustained two injuries including one injury on her forehead. As free fight between the parties was found by the court, hence on the basis of evidence on record the accused persons were acquitted. In Criminal Appeal Nos. 284 and 285 of 1971 - Lakshmi Singh and others Vs. State of Bihar, MANU/SC/0136/1976, the injuries of accused Dasrath were found to be serious. Thus, the facts of the above three judgements are found different from the facts of the present case because in the present case unlike the facts of the above judgements only injury sustained by the accused/applicant was found simple. Though, the injury was on the vital part i.e. neck of the accused but being simple this injury need not to be explained by the prosecution. Otherwise also, there is nothing on record to show that this accused was tried to be throttled by the injured. It is the admitted case that the fire was opened by the present accused, that caused fatal injuries to the first informant, he had to remain admitted in the hospital for about ten days. According to learned counsel for the first informant, the treatment of the first informant is still continuing. Admittedly, during the scuffle the first informant fell into the drain, though, as per prosecution version, he was pushed by the accused persons. At the worst, it can be taken up that the first informant fell down in a drain during scuffle and if he had fallen down in the drain, there was no occasion for him to throttle the neck of the accused. Otherwise also, if he tried to take out his pistol to make fire on the accused persons, he was admittedly in drain at that time and his pistol was snatched by the accused persons and as soon as his pistol was snatched away by the accused persons as per prosecution the apprehension of making fire by the first informant on the applicant or other co-accused persons had gone away. After perusing the record in the light of submission advanced at the bar, taking overall view of the facts and circumstances of the case, without commenting on the merits of the case, I do not find it to be a fit case for bail. The bail application is hereby rejected. Order Date :- 4.7.2023 gp Digitally signed by :- GANESH PRAKASH High Court of Judicature at Allahabad