High Court
Case Details
Neutral Citation No. - 2023:AHC:135044 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29552 of 2023 Applicant :- Ram Niwas Katheriya Opposite Party :- State of U.P. Counsel for Applicant :- Radhey Shyam Yadav Counsel for Opposite Party :- G.A.,Habaldar Singh Katheria Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Radhey Shyam Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sad Khan, Advocate holding brief of Mr. Habaldar Singh Katheria, the learned counsel for first informant. This application for bail has been filed by applicant-Ram Niwas Katheriya seeking his enlargement on bail in Case Crime No.259 of 2023, under Section 302 IPC, Police Station Kayamganj, District Farrukhabad, during the pendency of trial. Record shows that in respect of an incident which is alleged to have occurred on 28.05.2023, a delayed F.I.R. dated 29.05.2023 was lodged by first informant, namely, Shyamu (son of the deceased), which was registered as Case Crime No.0259 of 2023, under Section 302 IPC, Police Station Kayamganj, District Farrukhabad. In the aforesaid F.I.R., applicant Ram Niwas Katheriya has been nominated as solitary named accused. The gravamen of the allegations made in the F.I.R. is to the effect that about two and half months prior to the date of incident, a hot-talk had taken place in between first informant and applicant. It is on account of above that the applicant is alleged to have taken revenge by brutally killing (Harishchandra) father of the first informant. The F.I.R. further records that the Gamchha of applicant was found near the dead body of deceased. On aforesaid suspicion, applicant was nominated as named accused in the F.I.R. After aforementioned F.I.R. was lodged on 29.05.2023, Investigating OfÏcer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. During course of investigation, Investigating OfÏcer examined the following witnesses i.e. first informant (Shyamu-son of the deceased); Pappu alias Surendra Jatav; Sheru Katheriya and Ramadhar (brother of the deceased) and recorded their statements under Section 161 CrPC. The evidence of last seen emerged against the applicant in the statement of Shyamu i.e. first informant. On the basis of above, the applicant was arrested. Learned counsel for the applicant contends that investigation is still going on. As per the post-mortem report of the deceased, following ante-mortem injuries were found on the body of the deceased :- Ante-mortem injuries :- 1) Multiple L/W chest Head and Face on Right side measuring 8.2 cm to 1.4 cm. Muscle to Bone Deep on dissection Right frontal, Temporal and Parital maxilla & mandible are # meaning and Brain lacerated Teeth are losses and broken. ii) Multiple abraded contusion on Right side measuring front of 3 cm x 1.1 cm to 1.8 cm x 0.5 cm on Dissection Neck blackening, muscle Heamotoma present. iii) Abrasion 4 cm x 8 cm on top of right shoulder" In the opinion of autopsy surgeon, the cause of death of the deceased was shock and hemorrhage as a result of ante- mortem injuries. Learned counsel for the applicant contends that present case is a case of circumstantial evidence and therefore there is no eye-witness of the occurrence. The evidence of last seen has emerged against applicant in the statement of first informant himself. A perusal of the said statement will go to show that the uncle of the first informant is alleged to have informed the first informant that the deceased was last seen in the company of applicant. The statement of uncle of the first informant, namely, Ramadhar has also been recorded, who in his statement has reiterated the same story. Referring to the judgement of the Supreme Court in Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438, learned counsel for the applicant contends that no conviction of an accused is possible on the basis of last seen. No recovery has been made from the applicant either. Referring to the judgement of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, learned counsel for the applicant contends that complicity of an accused in a case based on circumstantial evidence is to be judged in the light of parameters laid down by the Apex Court in aforementioned judgement. However, up to this stage, none of the parameters laid down in the aforementioned judgement are satisfied against the present applicant. Up to this stage, except the statement of uncle of the first informant wherein the evidence of last seen of the deceased with the accused has surfaced against the applicant, no other incriminating circumstance pointing out the guilt of the applicant has yet been discovered by the Investigating OfÏcer. No motive for committing the crime in question has yet emerged either. On the above premise, he contends that applicant is liable to be enlarged on bail. Even otherwise, applicant is in custody since 01.06.2023. As such he has undergone more than one month of incarceration. No such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of investigation. The deceased was an old man and was a beggar by profession and therefore no strong motive can be attached to the applicant for committing the crime in question. He therefore submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that applicant is a named accused. The complicity of applicant in the crime in question is fully established as per the statement of first informant and that the uncle of the first informant namely, Ramadhar. The evidence of last seen has also emerged against applicant. As such applicant does not deserve any indulgence by this Court. Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that the present case is a case of circumstantial evidence therefore there is no eye-witness of the occurrence, complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of parameters laid down in Sharad Birdhichand Sarda (supra), up this stage none of the parameters laid down in aforementioned judgement are satisfied against the applicant, there is nothing on record up to this stage to conclude that there was strong motive with the applicant to commit the crime in question, the deceased was simply a beggar and therefore it cannot be said that there could be any motive with the applicant to commit murder of the deceased, the only evidence that is alleged against the applicant up to this stage is that of last seen in the statement of uncle of first informant who is an interested witness, no conviction of an accused is probable on the basis of last seen vide judgement of the Supreme Court in Jaswant Gir (supra), the clean antecedents of the applicant, but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant-Ram Niwas Katheriya, be released on bail in the aforesaid case crime number on his 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 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 counsel. In case of his absence, without sufÏcient cause, the trial court may proceed against him under section 229-A I.P.C. (iii) 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 174-A I.P.C. (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 sufÏcient 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. (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 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 :- 7.7.2023. Rks. Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad