High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32519 of 2022 Applicant :- Golu Kannujiya @ Pankaj Opposite Party :- State of U.P. Counsel for Applicant :- Sheetala Prasad Pandey Counsel for Opposite Party :- G.A.,Alkeshwar Kumar Singh,Atul Srivastava Hon'ble Rajeev Misra,J. 1. Heard Mr. Sheetala Prasad Pandey, the learned counsel for applicant and the learned A.G.A. for Stat. 2. Perused the record. 3. Instant bail application has been filed by applicant-Golu Kannujiya @ Pankaj seeking his enlargement on bail in Case Crime No.632 of 2021 under Sections302/34I.P.C., Police Station- Kotwali Khalilabad, District-Sant Kabir Nagar, during the pendency of trial 4. Record shows that in respect of an incident, which is alleged to have occurred on 20.09.2021, a prompt F.I.R. dated
Legal Reasoning
20.09.2021 was lodged by first informant-Vijay Kumar Chaudhary (father of the deceased) and was registered as Case Crime No.632 of 2021 under Sections 302/34I.P.C., Police Station- Kotwali Khalilabad, District-Sant Kabir Nagar. In the aforesaid F.I.R. applicant Golu Kannujiya @ Pankaj has been nominated as named accused whereas his associate has also been arraigned as accused. 5. The gravamen of the allegations made in the F.I.R. is to the effect that father of first informant namely Jagdish Chaudhary was put to death in the night by named accused alongwith his associates while he was at his shop. The F.I.R. further records that the first informant and his brothers suspected that it is possible that the alleged crime has been committed by named accused Golu Kannujiya @ Pankaj. 6. After registration of aforesaid F.I.R., Investigating officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. During course of examination, he first recorded the statement of the first informant-Jagdish Chaudhary under Section 161 Cr.P.C, who has supported the F.I.R. Certain recovery were made by Investigating Officer from the spot. Accordingly, recovery memo of same was prepared. Thereafter, applicant was arrested on the same day i.e. 20.09.2021 and on his pointing out a shocker of a Motorcycle was recovered. A recovery memo of same was also prepared. Photocopy of which is on record as Annexure-3 to the affidavit. 7. Inquest (Panchayatnama) of the body of deceased was conducted on 20.09.2021. In the opinion of panch witnesses, nature of death of deceased was characterised as homicidal. Subsequent to above, post-mortem of the body of deceased was conducted on the same day i.e. 20.09.2021. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on the body of deceased: "i. C.L.W. on left temporal region of skull forearm 4 cm of left ear 8cm x 1.5 cm. Deep Bon. ii. C.L.W. on left temporal region of scull forearm 5.5 cm of left ear 5 cm x 1 cm x Deep Bone. iii. CLW on left temporal region of skull from 7cm of left ear 5 cm x 0.5 cm. x 0.5 cm. iv. Lacerated wound on bar of index finger of right hand partially amputated forearm protruding size 4 x 0 cm. x Deep Bone. v. Haematoma in upper eyelid of left eye colour backish." 8. In the opinion of Autopsy Surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem multiple head injury. 9. During course of investigation several other witnesses including the Doctor, Imtiyaz Ahmad, M. O New PHC, Sant Kabir Nagar, who conducted autopsy on the body of deceased were also examined by the Investigating Officer. In the opinion of the Doctor, the injury sustained by deceased could have been caused by a sharp edged weapon. 10. On the basis of above as well as other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant who is a named accused is established in the crime in question. Accordingly, he submitted the charge-sheet dated 15.12.2021 whereby applicant has been charge-sheeted under Section 302 I.P.C. 11. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused but he is
Legal Reasoning
innocent. It is next contended by learned counsel for applicant that since the present case is a case of circumstantial evidence, therefore, complicity of applicant, if any, in the crime in question has to be examined as per the parameters laid down by Apex Court for deciding a case based upon circumstantial evidence in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622. Paragraph 152 of aforesaid judgement is relevant for the controversy involved in the present case. With reference to above, learned counsel for applicant submits that the only incriminating circumstance that has emerged against applicant during the course of investigation is the recovery of a shocker of Motorcycle on the pointing out of applicant which is said to be the weapon of assault. However, when the aforesaid recovery is examined in the light of the statement of Doctor namely Imtiyaz Ahmad, who conducted the autopsy of the body of the deceased, who opined that injury sustained by deceased could have only caused by a sharp edged weapon, the said recovery is therefore irrelevant. He therefore submits that the alleged weapon of recovery is not the weapon by which injury was caused to deceased. Except for the above, no other incriminating circumstance has emerged against applicant which may point at the guilt of the applicant and no other hypothesis. Motive behind the occurrence has also not been established against applicant. Even otherwise applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in custody since 20.09.2021. As such, he has undergone more than one year and two months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co- operate with the trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail 12. Per contra, the learned A.G.A. for State and the learned counsel representing the first informant have opposed the present bail application. They submit that since the applicant is a named as well as the charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant at this stage. 13. Having heard the learned counsel for applicant, the learned A.G.A. for State, learned counsel for first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that the only incriminating circumstance that has emerged against applicant upto this stage is the recovery of a shocker of motorcycle, which is said to the weapon by which injury was caused to the deceased and the said recovery does not co-relate with the nature of injury sustained by deceased as per opinion of Doctor, who conducted autopsy on the body of deceased, there being no other incriminating circumstance a against applicant. motive behind occurrence having not fully established against applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 14. Accordingly, present application for bail is allowed. 15. Let the applicant-Golu Kannujiya @ Pankaj involved in aforesaid case crime number be released on bail on 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) Applicant will not tamper with prosecution evidence. (ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 16. 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 of applicant and send him to prison Order Date :- 23.11.2022 YK Digitally signed by YASHWANT KUMAR Date: 2022.11.24 17:42:32 IST Reason: Location: High Court of Judicature at Allahabad