High Court
Case Details
Neutral Citation No. - 2023:AHC:152035 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30525 of 2023 Applicant :- Avaneesh @ Sallu Opposite Party :- State of U.P. Counsel for Applicant :- Preet Pal Singh Rathore,Neelam Singh Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Supplementary afÏdavit filed by the learned counsel for applicant in court today is taken on record.
Legal Reasoning
Heard Mr. Preetpal Singh Rathore, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Avaneesh @ Sallu seeking his enlargement on bail in Case Crime No.1717 of 2023, under Section 302 IPC, police station Ujhani, district Budaun, during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 21.03.2023, a delayed FIR was lodged on 22.03.2023 by first informant Naresh Pal and was registered as Case Crime No.0177 of 2023, under Section 302 IPC, police Ujhani, district Budaun. In the aforesaid FIR, the applicant Avaneesh @ Sallu has been nominated as solitary named accused. The gravamen of the allegations made in the first information report is to the effect that on 21.03.2023 at around 5.00 P.M., Munish gave an information to the first informant that sister of first informant, namely, Raheesha Devi has died. It is apposite to mention here that the occurrence giving rise to the present criminal proceeding occurred on 21.03.2023. Thereafter, information regarding aforesaid incident was given by a police personal RC 1286 Head Constable Chahar Singh PRV 1286. On the above information, the inquest (Panchayatnama) of the deceased was conducted on 22.03.2023. The first informant Naresh Pal is also a Panch witness. In the opinion of the witnesses of inquest (Panch witnesses), the cause of death of the deceased could not be ascertained as to whether it is homicidal or suicidal. Thereafter, the post-mortem of the body of the deceased was conducted on 22.03.2023. In the opinion of autopsy surgeon, the cause of death of the deceased was due to shock and hemorrhage as a result of ante-mortem injuries. The Doctor, who conducted the autopsy of the body of deceased, found following ante-mortem injuries on the body of the deceased, which is explicit from the recital contained at page 32 of the paper book :- "1. Abraded contusion 4 x 3 cm present right side of forehead, 2 cm above right eyebrow. 2. Contusion 4 x 2 cm present around left eye. 3. Abraded contusion 2 x 1 cm present right side of face, 2 cm in front of ear. 4. Lacerated wound 0.5 cm x 0.5 cm present over lower part of left ear, 1 cm at ear lobule. 5. Abraded contusion 5 x 1 cm present right shoulder around tip. 6. Abraded contusion 2 x 0.5 cm present dorsum of right elbow. 7. Abraded contusion 3 x 1.5 cm present upper outer part of right thigh from iliac chest. 8. Abrasion 0.5 x 0.5 cm present over of right leg just below right knee." After aforementioned proceedings of Inquest and Post-mortem were completed, above mentioned F.I.R. was lodged, Investigating OfÏcer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant, who has given another version of the occurrence in his statement recorded under Section 161 CrPC before the Investigating OfÏcer. Investigating OfÏcer examined other witnesses also under Section 161 CrPC. On the basis of above and other material collected by him during the course of investigation, he came to the conclusion that complicity of applicant is established in the crime in question. Accordingly, he submitted the charge- sheet dated 10.06.2023, whereby applicant has been charge- sheeted under Section 302 IPC. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. The applicant is innocent. He has been falsely implicated in the crime in question. It is next contended that present case is a case of circumstantial evidence and therefore, there is no eye-witness of the occurrence. 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 aforementioned judgement are satisfied against the present applicant. He further submits that neither there is any recovery from the applicant nor there is any witness of last seen. No strong motive to commit the crime has emerged against the applicant either. The credibility of the first informant on whose statement the applicant has been primarily implicated in the crime in question, the learned counsel for applicant contends that first informant had borrowed a sum of rupees one lac twenty thousand from the deceased as is established from the document occurring at page 24 of the paper book. The first informant was present at the time of inquest proceeding as he is also a Panch witness but no disclosure was made by him with regard to the fact recorded in his statement under Section 161 CrPC. He, therefore, submits that up to this stage, no such credible evidence has emerged against applicant on the basis of which an inference of guilt of the accused- applicant in the crime in question could be drawn. The applicant is the real grand-son of the deceased. The police report in terms of Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the pendency of trial. Even otherwise, the applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The applicant is in jail since 22.05.2023. As such he has undergone more than two months of incarceration. He therefore submits that the 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. has opposed the prayer for bail. He submits that applicant is a named and charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made 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, neither there is evidence of last seen nor any recovery has been made from applicant, the applicant is real grand-son of the deceased, the clean antecedents of applicant but without making any comment on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant- Avaneesh @ Sallu be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy 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 :- 27.7.2023. Rks. Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad