High Court
Case Details
Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47684 of 2021 Applicant :- Dinesh Kumar Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Pandey,Rakesh Kumar Mathur Counsel for Opposite Party :- G.A.,Sudarshan Singh Hon'ble Manish Kumar,J.
Legal Reasoning
Heard Sri Rakesh Kumar Mathur, learned counsel for the applicant, Sri Anurag Pandey, learned Advocate, holding brief of Shri Sudarshan Singh, learned counsel for the informant as well as learned AGA for the State and perused the material placed on record. This bail application has been moved seeking bail in Case Crime No.769 of 2019 under section 302 I.P.C., Police Station Nawabganj, District Allahabad, during the pendency of trial. As per FIR which has been lodged by Chandrma Prasad Mishra, the prosecution case is that his son (deceased) had gone to attend call of nature on 29.10.2019 at about 7.30 A.M. and when he was returning from there and reached on Kachchi road outside the village, the applicant along with three other co- accused named in the FIR, started assaulting him with knife, spear, 'lathi-danda' and country made pistol etc. by which he received serious injuries and when he was taken to CHC Kaudihar, he was declared dead. As per post-mortem report, the deceased had sustained three injuries which consisted of one lacerated wound on skull, one stabbed wound on upper chest and other stabbed wound on right mid arm. Cause of death is hemorrhage, shock and Coma. Submission made by the learned counsel for the applicant is that there is no eye witness of this occurrence and subsequently after two and half months of this occurrence, Vidya Sahai Mishra and Smt. Prema Devi are set up as eye witnesses of this occurrence, who have stated that they had reached the place of occurrence after hearing cry of the deceased and had seen the deceased being assaulted by the applicant along other co- accused named in the FIR with the weapon as mentioned in the FIR. Further, it is argued that none of the witnesses are eye witnesses and he has also drawn attention to the recovery memo, which is annexed at page 38 of the paper books, when the co-accused Rohit Mishra was arrested, he has stated that he had assaulted the deceased by knife and he also got the weapon of assault recovered i.e. the knife from an open place. Further, it is argued that the said co-accused has not named the applicant as the person, who had made any assault on the deceased. The applicant is not involved in any other criminal case. The applicant is absolutely innocent and is languishing in jail since 25.11.2019. In case the applicant is released on bail he will not misuse the liberty of bail. Learned counsel for the applicant has further submitted that co-accused Mohit Kumar Mishra, against whom the same allegation as it has been made against the present applicant, has approached this Court by filing a Criminal Misc. Bail Application No. 22982 of 2020, in which this Court vide its order dated 2.11.2020 has granted bail. The copy of the aforesaid order has been enclosed as Annexure No.9 to the affidavit filed along with the bail application. Learned A.G.A. as well as Shri Anurag Pandey, learned counsel for the informant have vehemently opposed for grant of bail. Learned counsel for the informant has produced a copy of the complaint dated 23.5.2017 which had been sent by the informant to the SSP, Allahabad and it is stated that this complaint was lodged against the applicant and other co- accused, who are all real brothers and because of this animosity, the present occurrence has been given effect to. Learned A.G.A. as well as learned counsel for the informant, however, have failed to oppose the parity claimed by the applicant. In the light of the aforesaid arguments, looking to the fact that FIR appears to have been lodged by the informant who is not an eye witness and the co-accused Rohit Mishra has confessed to have murdered the deceased by knife, therefore, his case is distinguishable from the case of the present accused, taking into consideration the nature of offence, quantum of punishment and period of detention in jail, without expressing any opinion on the merits of the case, it is found to be a fit case for bail. Let the applicant, Dinesh Kumar Mishra involved in aforesaid case crime number be released on bail on furnishing 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 dates 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 sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (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. is issued and the 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 of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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. It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. Order Date :- 5.1.2022 Sachin/-