High Court
Case Details
1 Reserved on :- 16.08.2022 Delivered on :- 26.08.2022 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35989 of 2021 Applicant :- Bachcha Lal Yadav And Another Opposite Party :- State of U.P. Counsel for Applicant :- Renu Singh,Rajan Srivastava,Sr. Advocate Counsel for Opposite Party :- G.A.,R P Rajan Hon'ble Siddharth,J. 1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Rajan Srivastava, learned counsel for the applicants, Sri R.P. Rajan, learned counsel for the informant and learned A.G.A. for the State and perused the material placed on record. 2. The instant bail application has been filed on behalf of the applicants, Bachcha Lal Yadav and Kanhaiya Lal Yadav, with a prayer to release them on bail in Case Crime No. 30 of 2021, under Sections 147, 148, 149, 307, 308, 323, 504, 506 I.P.C., Police Station- Chaubepur, District- Varanasi, during pendency of trial.
Legal Reasoning
3. There is allegation in the first information report that the applicants along with other co-accused were illegally digging mud in the agricultural field of the informant. When he protested along with his nephew, Kshitiz Singh, they abused them and went away. After sometime at about 9.30 a.m., the applicant along with other co- accused persons came back armed with lathi, danda and iron rods and they assaulted nephew of informant badly. Co-accused, Chandan Yadav, allegedly fired on his nephew with intention to kill him but it missed the target. Thereafter, few witnesses came on the spot and the accused persons ran away. 4. Learned Senior Counsel for the applicant has submitted that the 2 alleged incident took place at 9.30 a.m. on 18.01.2021 but the first information report was lodged on the next date on 19.01.2021. The injured, Kshitiz Singh, was examined on 18.01.2021 at Government Hospital where six injuries were found and injury no. 1 was advised for x-ray. On the same day, he was admitted in Trauma Centre of B.H.U., Varanasi, where his right clavical bone was found to be fractured. The statement of the injured, Kshitiz Singh, was recorded by the Investigating Officer. He did not assigned the role of causing any specific injury to the applicants. General allegations were made against all the accused persons. He has further submitted that infact it is a cross case. Both the sides were laying soil in the field as a result of which scuffle took place and the brother of the co-accused, Bhaiya Lal Yadav, received injuries. Their first information report was not lodged. Hence, they have filed an application u/s 156 (3) Cr.P.C. through applicant no. 1, Bachcha Lal Yadav, which has been allowed and first information report has been directed to be lodged by the order dated 19.07.2021 by the Judicial Magistrate, Court No. 2, Varanasi. He has further submitted that the applicants along with other accused were convicted in S.T. No. 722 of 2004 u/s 302/34 I.P.C. and S.T. No. 83 of 2005 u/s 25 of the Arms Act and they are on bail in Criminal Appeal No. 1920 of 2006 as per order dated 19.04.2006. The applicants have criminal history of few other cases explained in paragraph nos. 19, 20, 21 and 22 of the affidavit. The applicants are languishing in jail since 30.06.2021. Learned Senior Counsel for the applicant has pointed out to the bail order passed in the case u/s 302/34 I.P.C. wherein the applicants were implicated and has referred to the finding of Division Bench of this Court on the basis of which the applicants were enlarged on bail which are as follows :-
Legal Reasoning
“It is vehemently contended by the appellants learned counsel that all the eye-witnesses, including the injured Ram Bilash Chauhan 3 and informant Badam Yadav turned hostile and did not support the prosecution version. The finding of conviction was recorded by the court below on the testimony of two daughters of the deceased namely, Km. Sarita and Km. Rekha who disclosed the involvement of the appellants in the murder of their father. Admittedly, they are not eye-witnesses to the incident of murder. It is also submitted that all the appellants were on bail during trial.” He has submitted that applicants were falsely implicated in this case and only on the basis of testimony of two witnesses, they were convicted in this case. The two witnesses were not eye witness of the incident of murder and all the eye-witnesses had turned hostile. He has submitted that the conviction of the applicant in the aforesaid case was not justified and mere conviction in the aforesaid case will not dis-entitle them to be enlarged on bail. He has finally submitted that the applicants exercised their right of self-defence and therefore, they are entitled to be enlarged on bail by this Court. He has placed reliance on the following judgements :- (a) Mohar Rai Vs. State of Bihar, 1968 (Cr.LJ) 1479 (b) Lakshmi Singh Vs. State of Bhiar, 1975 (5) SCC 394 (c) Mitter Sen Vs. State of U.P., 1976 (Cr.LJ) 857 (d) Babu Ram & Others Vs. State of Punjab, 2008 0 AIR(SC) 1260 (e) Amarjit Singh Vs. State of Haryana, 2010 0 AIR(SC) 2502 (f) Krishnegowda & others Vs. State of Karnataka by Arkalgud Police, 2017 0 AIR(SC) 1657 5. Learned counsel for the informant has vehemently opposed the bail application. He has submitted that the applicants are hardened and convicted criminals. He has further submitted that the application made by applicant no. 1 u/s 156(3) Cr.P.C. is not based on correct facts since in the aforesaid application, they have stated that they were not present on the spot and therefore, the submission of the learned Senior Counsel that the applicants caused injuries to the 4 other side exercising their right of private defence is not in accordance with law. He has relied upon the judgement of the Apex Court in the case of Brijmani Devi Vs. Pappu Kumar & Anr., 2021 (12) JT 287 wherein the Apex Court set-aside the order of bail of the High Court being cryptic in nature. Further reliance has been placed on another judgement of the Apex Court in the case of Ram Pratap Yadav Vs. Mitra Sen Yadav, 2003 (1) SCC 15 wherein the Apex Court held that the High Court should have taken into account the reasons assigned by the Sessions Court for rejecting the bail of the accused. 6. After hearing rival contentions, this Court finds that the applicants have been assigned the role of causing injury by lathi, danda along with other co-accused persons in the first information report but they have not been assigned any specific role. However, the fact remains that the injured has suffered six injuries on his body caused by lathi, danda. There are 10 accused persons in the first information report and one of them, namely, Chandan Yadav, has been assigned the role of causing firearm injury. The injured has suffered one fracture injury. Applicants are previous convicts in two cases out of five cases shown in their criminal history. They have been implicated in this case while they are on bail in the case u/s 302/34 I.P.C. The arguments regarding exercise of right to private defence is belied from the contents of the application filed by the applicant no. 1 u/s 156(3) Cr.P.C. wherein the applicants have not been shown as the persons who exercised right to private defence against the informant’s side in saving the brother of the applicant no. 1, who has allegedly been beaten by the informant’s side. In paragraph no. 7 of the aforesaid application, it has only been stated that they are witnesses of the incident and they intervened and saved the life of brother of the applicant no. 1. It is clear that the 5 arguments regarding the exercise of right to private defence is not tenable. 7. The applicants have not made out any good ground for being released on bail at this stage. Their bail application is accordingly, rejected. Order Date :- 26.08.2022 Rohit Digitally signed by ROHIT DAS Date: 2022.08.29 16:28:25 IST Reason: Location: High Court of Judicature at Allahabad