High Court
Case Details
1 Reserved On:- 28.06.2022 Delivered On:- 13.07.2022 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25180 of 2022 Applicant :- Mahipal @ Allu Opposite Party :- State of U.P. Counsel for Applicant :- Anjani Kumar Raghuvanshi, Sujan Singh Counsel for Opposite Party :- G.A., Kapil Tyagi Hon'ble Siddharth, J. 1. Heard Sri Sujan Singh, learned counsel for the applicant, Sri Kapil Tyagi, learned counsel for the informant and learned A.G.A for the State. 2. This bail application has been filed praying for release of applicant on bail in Case Crime No. 36 of 2021, under Sections- 147, 148, 149, 302, 307, 504 IPC and under Section- 7 of Criminal Law Amendment Act, Police Station- Badalpur, District- Gautam Buddh Nagar. 3.
Legal Reasoning
First information report was lodged against Devendra, Ravindra, Satendra, Dharmendra, Jitendra, Bhopal, Amit, brother of Bhopal and two unknown accused persons on 09.02.2021 at about 2:29 hours as Case Crime No. 36 of 2021, under Sections- 147, 148, 149, 302, 307, 504 IPC and Section 5 of Criminal Law Amendment Act, Police Station- Badalpur, District- Gautam Buddh Nagar. 4. The facts giving rise to the instant bail applications are that a first information report was lodged on 09.02.2021 at 02:29 a.m by the informant, Sunil Kumar son of Rajendra, regarding an incident that took place on 08.02.2021 at 11:20 hours against the eight named accused persons including the applicant and 2-3 unknown persons alleging that Devendra and Ravindra, who are real brothers, had made encroachment 2 over the land of one, Narendra, resident of his village, which has given rise to dispute between them. To solve the dispute, a meeting was fixed in the office of Manoj Pradhan. On 08.02.2020 at about 10:30 AM, villagers collected there and co-accused, Devendra, was also called, but he refused to participate in the meeting by saying that he will directly come on the plot. On reaching there, the informant and others found that co-accused, Devendra, along with his brothers, co-accused, Ravindra, Satendra, Dharmendra, Jitendra, and his associates Bhopal, his brother, Amit Bansal and 2-3 unknown persons were already present there at some distance from the plot. When the informant and others reached there at 11.20 hours, accused, Devendra and others started abusing and firing on them from their respective weapons with intention to kill, which hit brother of informant, Suresh alias Salek and Amit and Prem. In addition to the informant, the said incident was witnessed by Jaideep, Narendra, Rajesh, Vipin and other persons already present there. Due to indiscriminate firing an atmosphere of fear was created and people started shutting doors of their houses. Accused persons fled away from the spot. Injured persons were taken to the hospital with the help of the villagers, but on the way to Yashoda Hospital, Amit died, whereas Suresh also died at Colambia Asia Hospital during treatment. Treatment of injured, Prem, is going on in Yashoda Hospital, whose condition is also very serious. The FIR further mentions that after the postmortem of dead bodies of Amit and Suresh, informant and others took their bodies to their native village and after performing last rites, they have come to the police station to lodge the report. 5. The inquest of the dead body of two deceased, namely, Suresh and Amit, were conducted on 08.02.2021 at about 1:45 hours and post mortem was also conducted on the same day at about 16:20 hours and 16:40 hours. The injured Prem Chandela, was examined in Yash Hospital and Research Centre on 15.02.2021. 3 6. The statement of the informant was recorded by the police on 09.03.2021 wherein he disclosed the name of the applicant and co- accused, Anoop Yadav. The Investigating Officer prepared the site plan of the place of occurrence on 09.02.2021. The statement of injured / eye- witness, Prem, was also recorded on 05.05.2021 wherein the name of the applicant is missing. However, charge sheet has been submitted against Devendra, Ravindra, Satendra, Dharmendra, Jitendra, Bhopal, Amarjeet Bansal and Mahipal @ Allu (the applicant) by the Investigating Officer on 05.05.2021. The Investigating Officer has removed the names of co- accused, Anoop Yadav and Amit Bansal after investigation. 7. Learned counsel for the applicant submits that there is delay in lodging of FIR since the incident took place on 08.02.2021 at about 11:20 hours and the FIR was lodged on 09.02.2021 at about 02:21 hours and there is no explanation of the same. The applicant was not named in the FIR. He has been implicated in this case being brother of Bhopal. Bhopal has two brothers, namely, Mahipal @ Allu and Kanwar Singh. The applicant is a student and has been falsely implicated in this case. Two co- accused, Anoop Yadav and Amit Bansal, have been exonerated by the Investigating Officer, since their implication was not found to be correct. Applicant has also been falsely implicated like the two named accused aforesaid. No injury was suffered by the informant and the witnesses in the FIR. Dispute relates to a plot which does not belongs to the applicant. The injured, Prem Singh, has not taken the name of the applicant. The applicant has been generally implicated in this case with no specific role. No recovery has been made from him. Only his presence has been shown on the spot. He had no motive to commit the crime nor has any previous criminal history. He is languishing in jail since 11.02.2021. 4 8.
Legal Reasoning
Learned counsel for the applicant has further pointed out to the post mortem reports of the deceased, Amit Chandela and Suresh and has submitted that the ante-mortem injuries of both the deceased proves that only one weapon was used for causing death of both the deceased. In the post-mortem report of Amit Chandela, the following ante-mortem injuries have been found :- (i) Entry wound 1.5 cm x 1.5 cm over right side of neck, 3.0 cm above the mid point of right clavicle. (ii) Exit wound 2 cm x 2.0 cm over left side of back, 28.0 cm below the back of left shoulder. 9. The ante-mortem injuries on the person of the deceased, Suresh, are as follows :- (i) Lacerated wound 1.5 cm x 1.5 cm over back of right forearm, 18 cm from right wrist. (ii) Lacerated wound 2 cm x 2cm over front of right forearm, 6 cm from right. (iii) Entry wound 1.5 cm x 1.5 cm over chest. (iv) Exit wound 2cm x 2cm over left back. (v) Entry wound 1.5 cm x 1.5 cm over left side of back. (vi) Exit wound of 2cm x 2cm over left side of back. 10. Counsel for the applicant has submitted that the dimensions of entry and exit wound shows that they have been caused by the same weapon and therefore the role of firing can be attributed to only one accused and not to all the accused persons. Site plan prepared by Investigating Officer creates doubt about the correct place of occurrence. He has neither shown the 5 place of the presence of the assailants nor any particular place has been shown on the place of presence of deceased nor the place of presence of witnesses has been shown. The vehicle owners and the licensed armed owners have not been implicated either by the informant or by the Investigating Officer. There is no explanation as to why the applicant and other co-accused persons were waiting for arrival of deceased, Amit and Suresh and the injured, Prem, since their main enemy, namely, Narendra, was present with them as admitted in the FIR. The applicant had no motive of killing the deceased. He is in jail since 11.02.2021. 11. Learned counsel for the informant, Sri Kapil Tyagi, has vehemently opposed the bail application. He has submitted that the bail application of two co-accused persons, namely, Dharmendra and Satendra, have been rejected by this court vide Criminal Misc. Bail Application Nos. 30942 of 2021 and 31951 of 2021 respectively by the order dated 04.04.2022. He has further submitted that the applicant along with co-accused persons, Devendra, Ravindra, Jitendra and Bhopal, was arrested at Delhi and they made firing on the police party. FIR has been lodged on 11.02.2021, under Sections- 307, 324, 34 IPC against them at Police Station- Badalpur, District- Gautam Budh Nagar. He has further submitted that in this case, indiscriminate firing was made by the member of accused persons resulting in death of two persons and one person was badly injured. The injured witness, Prem, has also been murdered after the alleged incident and a Case Crime No. 502 of 2021 has ben registered against, Ravindra, Devendra, Amit Bansal and two unknown accused persons as Case Crime No. 502 of 2021, under Sections- 302/120-B IPC at Police Station- Badalpur, District- Gautam Budh Nagar. 12. Learned A.G.A has also opposed the prayer of the applicant for bail and has submitted that considering the overall facts of the case the applicant is not entitled to be enlarged on bail. 6 13. After hearing the rival contentions, this court finds that in the FIR the applicant is not named in the FIR rather the brother of the Bhopal has been implicated as an accused in the FIR. It has been pleaded in the bail application that the applicant is brother of Bhopal but there is another brother of Bhopal known as Kanwar Singh. The injured witness, Prem, son of Khajan Singh, has not named the applicant at all. He has named Devendra Chandela and his four brothers and their companions in the FIR. The dimension of injuries caused to both the deceased is absolutely the same. There is motive regarding the dispute of land regarding the accused, Devendra Chandela, and his brothers, namely, Ravindra, Satendra, Dharmendra and Jitendra, but no motive has been assigned to the applicant and remaining co-accused persons. Co-accused persons, Dharmendra and Satendra, whose bail applications have been rejected by this court were the real brothers of Devendra and Ravindra. 14. In the FIR, it is clearly alleged that co-accused persons, namely, Devendra and Ravindra, sons of Hariya, have illegally occupied the land of Khasra No. 260 of Narendra son of Ajay Pal regarding which a panchayat was called on the fateful day on 08.02.2021. No harm was caused to Narendra regarding whose land there was dispute. In the FIR which was lodged regarding firing on police party, only three persons have been implicated by the police, namely, Devendra Chandela, Ravindra Chandela and Bhopal. Therefore, the arguments of the counsel for the informant in this regard is not correct. The role of the co-accused, Dharmendra and Satendra, who have been denied bail by this Court, is different from that of the applicant. It has not been disputed that this is the first implication of the applicant and he has no prior criminal history. 15. Let the applicant, Mahipal @ Allu, involved in Case Crime No. 36 of 2021, under Sections- 147, 148, 149, 302, 307, 504 IPC and Section 7 of Criminal Law Amendment Act, Police Station- Badalpur, District- 7 Gautam Budh Nagar, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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. (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code. (iv) 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. is issued and the 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 of the Indian Penal Code (v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. 8 16. In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail. 17. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. 18. Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of two years. Order Date :- 13.07.2022 Rohit Digitally signed by ROHIT DAS Date: 2022.07.14 16:45:52 IST Reason: Location: High Court of Judicature at Allahabad