High Court
Case Details
Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45611 of 2021 Applicant :- Om Prakash Sharma And Another Opposite Party :- State of U.P. Counsel for Applicant :- Syed Imran Ibrahim,Praveen Kumar Singh,Sr. Advocate Counsel for Opposite Party :- G.A.,Arvind Kumar Rai Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Manish Tiwari, learned Senior Advocate assisted by Sri Praveen Kumar Singh, learned counsel for the applicants, Sri Arvind Kumar Rai, learned counsel for the first informant Sri Raj Kumar Gupta, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants - Om Prakash Sharma and Abhishek Sharma, seeking enlargement on bail during trial in connection with Case Crime No. 149 of 2021, under Sections 323, 504, 506, 304, 308 I.P.C., registered at P.S. Sindhaura, District - Varanasi. First Information Report of the present case was lodged on 21.6.2021 by Smt. Bindu Sharma against the applicants and Pramod Sharma alleging therein that on 21.6.2021 at about 2.30 p.m. due to some dispute with regard to property her 'Devar' Ashwini Sharma was assaulted by co-laterals, who are the accused, with iron rod. She was abused and threatened for life. Her 'Devar' has received injury. He is admitted in B.H.U. and is under treatment. The first information report was lodged under Section 323, 504, 506 I.P.C. Learned counsel for the applicants argued that subsequently vide 'Parcha' dated 22.6.2021 Section 308 I.P.C. was added in the present case. It is argued that Ashwini Sharma, the injured died on 23.6.2021 at 11.42 p.m. while being under treatment in SSHIMS BHU, Varanasi. The Doctor conducting the postmortem examination found four injuries on his body and opined the cause of death as Coma as a result of injury noted above but the injury no. (1) was having 11 stitches on the top of the head and damage to the same was described in the injury no. (4). It is argued that other two injuries were on different parts of the body and did not contribute to death. Learned counsel for the applicants further argued that subsequently vide 'Parcha' dated 24.6.2021 Section 304 I.P.C. was also added in the present case. It is argued that on 24.6.2021 the applicants and the co-accused were arrested by the police on the information by the police informer and their confessional statement was recorded after which on their pointing out an iron rod is alleged to have been recovered. It is argued that the charge-sheet in the matter has been submitted against all the three accused persons. Learned counsel for the applicants further argued that a first information report as Case Crime No. 190 of 2021 was lodged by Smt. Savitri Devi wife of Om Prakash Sharma, the applicant no. 1, on 15.8.2021, which was directed to be lodged on the strength of an order passed on an application under Section 156(3) Cr.P.C. under Section 147, 148, 149, 452, 427, 376, 511, 354,323, 504, 506 I.P.C. against seven accused persons including Ashwini Sharma, who is the deceased of the present case. It is argued that the deceased had tried to commit rape upon the first informant in the said matter after which he was assaulted by the 'Devrani' of the first informant due to which he died. Learned counsel for the applicants has argued that even otherwise, the cause of death was the single injury received on the head of the deceased but common and general role has been assigned to all the three accused persons, including the applicants of assault with an iron rod on him. It is argued that there is no specification whatsoever about the author of the fatal injury. It is argued that in so far as the recovery of the iron rod is concerned the same is inadmissible as the same has been recovered on the joint pointing out of three accused persons. It is argued that the applicants are having no criminal history as stated in paragraph 25 of the affidavit and is in jail since 24.6.2021. Per contra, learned counsel for the first informant vehemently opposed the prayer for bail and argued that the applicants are named in the first information report and there are allegations against them of assault upon the deceased. It is argued that there is a recovery of the weapon of assault on the pointing out of three accused persons named in the FIR after their arrest. It is further argued that the injury received by the deceased corroborates with the prosecution evidence and therefore, their bail application may be rejected. Learned counsel for the State has also opposed the prayer for bail. After having heard learned counsel for the parties and perusing the records, it is apparent that the deceased died due to Coma as a result of the head injury. Three accused persons are alleged to have assaulted him. Injury on the head is the fatal injury. The author of the said injury is not known. The charge-sheet in the matter has been submitted. Let the applicants - Om Prakash Sharma and Abhishek Sharma, be released on bail in the aforesaid case crime number on their 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:- 1. The applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. 2. The applicants 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. 3. The applicants 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. 4. The applicants will not misuse the liberty of bail in any manner whatsoever. 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. 5. The applicants 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 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 and the trial court may proceed against him under Section 229-A IPC. The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 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 and send the applicant to prison. The bail application is allowed. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing. (Samit Gopal, J.) Order Date :- 8.2.2022 nd Digitally signed by NISITH DEY Date: 2022.02.09 17:13:27 IST Reason: Location: High Court of Judicature at Allahabad