High Court
Case Details
Court No. - 88 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46033 of 2021 Applicant :- Vikas @ Vikky Opposite Party :- State of U.P. Counsel for Applicant :- Syed Shahnawaz Shah Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
Heard Sri Syed Shahnawaz Shah, learned counsel for the applicant and Sri Sanjay Kumar Singh, learned A.G.A. 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 applicant- Vikas @ Vikky, seeking enlargement on bail during trial in connection with Case Crime No. 150 of 2021, under Sections 147, 148, 149, 323, 352, 504, 304, 427, 325 I.P.C., registered at Police Station Daurala, District Meerut. The prosecution case as per the F.I.R. lodged on 24.5.2021 at about 18:25 hours by Shiv Kumar against the applicant and six other named accused persons and some unknown persons, is that he had gone to see the construction of his house wherein the accused persons namely Vinod Kumar, Praveen, Amit, Arjun, Karan, Akash and the applicant and three unknown persons came there and hurled abuses on him and with intention to murder him, the applicant and the co- accused Amit broke his motorcycle, after which he somehow entered inside his other house to save himself and then the accused persons in their motorcycle entered in his house wherein the co-accused Praveen armed with country made pistol, fired upon him which missed him and then, the co-accused Arjun armed with a pointed object, assaulted him repeated times on his head due to which he suffered injuries on his head and fell down. His mother Smt. Kela Devi intervened to save him on which the co-accused Vinod, Arjun, Praveen, Akash and Karan assaulted her with iron rod and danda due to which she received injuries. She was taken to the hospital where she was medically examined and then she was referred to higher centre. She is still in critical condition. Learned counsel for the applicant argued that the F.I.R. has been lodged after eight days of the incident. There is inordinate delay in lodging of the F.I.R. which is without any plausible explanation. It is argued that the first informant is an injured witness of the incident and had also received injuries for which he was medically examined on 17.5.2021 wherein he was found to have received a lacerated wound and one reddish abrasion but the doctor has opined the injuries to be simple in nature and were fresh in duration. Smt. Kela Devi was also medically examined on 17.5.2021 and the doctor found a lacerated wound, one traumatic swelling and reddish contusion and reddish periorbital contusion and the injury no. 1 and 2 were kept under observation whereas the injuries no. 3 was simple in nature. Duration was opined to be fresh. It is argued that subsequently Smt. Kela Devi was admitted in the hospital on 24.5.2021 at about 08.34 P.M. after which she died. Her post mortem examination was conducted on 25.5.2021. Learned counsel for the applicant argued that cause of death of Smt. Kela Devi was opined to be cranio cerebral damage which was due to the injury received by her on her head. It is argued that the first informant was an injured witness of the incident. Learned counsel has argued that later on after the death and cremation of Smt. Kela Devi, the first informant gave his statement under Section 161 Cr.P.C. in which although he reiterates the version as given in the F.I.R. but in so far as the assault upon his mother is concerned, he states that all the accused persons assaulted her. It is argued that the same is an afterthought with ulterior motives. Learned counsel has further argued that even though the injuries received by Smt. Kela Devi which were examined by the doctor while she was alive, do not corroborate with the prosecution case as five persons were alleged to have assaulted her whereas she had received only three injuries on her body. It is argued that initially the F.I.R was lodged under Sections 147, 148, 149, 323, 352, 504, 307, 427, 452 I.P.C. only but after death of Smt. Kela Devi, Section 304 I.P.C. was added in the same. It is argued that naming of the applicant and his implication in the present case is false and there is no credible evidence against the applicant. Further there is no overt act assigned to the applicant. The applicant is not stated to have assaulted either the first informant who is the injured or Smt. Kela Devi who is the deceased. It is argued that there is no recovery of any incriminating material either from the possession or pointing out of the applicant for which para-27 of the affidavit has been placed. It is argued that the case of the applicant is identical to that of co-accused Amit who has been granted bail by this Court vide order dated 29.11.2021 passed in Criminal Misc. Bail Application No. 44730 of 2021 (Amit vs. State of U.P.). The copy of the said order has been produced before the Court which is taken on record. The applicant has no other criminal antecedents as stated in para-28 of the affidavit and is in jail since 04.6.2021. Per contra, learned State counsel opposed the prayer for bail and argued that the applicant is named in the F.I.R. and there is allegation of his being present at the place of occurrence and had broken the motorcycle of the first informant along with the other co-accused Amit and as such, his presence cannot be doubted. After having heard learned counsels for the parties and perusing the record, it is evident that the F.I.R. has been lodged after eight days of the incident without any plausible explanation about the delay. No overt act has been assigned to the applicant of either assaulting the first informant or the deceased in the F.I.R. Later on the first informant states that all the accused persons assaulted his mother Smt. Kela Devi but the same does not get corroboration from the medical evidence. Co-accused Amit has been granted bail by this Court. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. Let the applicant- Vikas @ Vikky, be released on bail in the aforesaid case crime number 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) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The 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) 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. (iv) The applicant 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. (v) 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 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. (vi) 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. Order Date :- 9.2.2022/AS Rathore (Samit Gopal,J.) Digitally signed by ABHISHEK SINGH RATHOR Date: 2022.02.10 17:34:27 IST Reason: Location: High Court of Judicature at Allahabad