High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52912 of 2021 Applicant :- Parshuram Soni Opposite Party :- State of U.P. Counsel for Applicant :- Amit Daga,Vipul Kumar Singh Counsel for Opposite Party :- G.A.,Ghan Shyam Das Hon'ble Mohd. Faiz Alam Khan,J. Supplementary affidavit filed on behalf of the applicant is taken on record.
Legal Reasoning
Heard Shri Amit Daga, learned counsel for the accused- applicant, Shri Ghyan Shyam Das, learned counsel for the informant/complainant as well as learned A.G.A. for the State and perused the record. This bail application has been moved by the accused/applicant- Parshuram Soni for grant of bail, in Case Crime No.33 of 2009 (S.T. No.91 of 2009), under Sections 302/34, 201/34, 404/34 I.P.C., Police Station Rath, District Hamirpur, during trial. Before adverting to the submissions made by learned counsel for the parties, it would be fruitful to have a glance on the factual aspect of the case. It was on 10.01.2009, an application was moved by the brother of the deceased namely Ram Kishun Rajput stating therein that his brother namely Gajraj had gone out of his house on 09.01.2009 at 08:00a.m. in the morning and did not return, however, his dead body has been found hanging on a tree on 10.01.2009. This information was registered at Police Station Rath, District Hamirpur at G.D. No.47 at 17:00 hours in the G.D. of the police station concerned. Interestingly the brother-in-law (sala) of the deceased namely Dhirendra Kumar is also shown to be present in the G.D. entry when this information was given to the Police Station concerned. The inquest of the dead body of the deceased was conducted on the same day i.e. 10.01.2009 and thereafter postmortem of the deceased was conducted, wherein four injuries have been found on the person of the deceased including one ligature mark around his neck and having regard to the nature of the injuries found on the body of the deceased, the doctor was of the opinion that the cause of death was due to asphyxia as a result of ante mortem stragulation by ligature. On the basis of postmortem report of the deceased, the case was converted into as of cognizable offence under Section 302 I.P.C. It was on 12.01.2009, the above mentioned Dhirendra Kumar (brother-in-law/sala of the deceased) moved an application before the S.H.O., Police Station Rath, District Hamirpur stating therein that on 09.01.2009 at 05:30p.m. in the evening he along with his sister (wife of the deceased) and the deceased were going to village Kaithi from Rath after purchasing household groceries and when they arrived near village Pathnaudi, the instant applicant namely Parshuram Soni and two other co-accused persons namely Ranu @ Amit and Chandra Bhan Soni came riding on a motorcycle from the side of village Badanpura and caught hold of the deceased and his wife (Usha) and started assaulting them and stated that the deceased is making hurdles in the mutation of the land purchased in the name of wife of instant applicant and therefore, he must be eliminated and they also threatened the informant and the wife of the deceased and dragged the deceased towards the fields and after strangulating him, hanged his body on a tree. It is also stated that the applicant (Dhirendra Kumar) and the wife of the deceased were apprehended and they did not tell anything about the incident to anyone. The investigating officer of the case recorded the statement of Dhirendra Kumar and Usha Devi and did not found the version of the incident as stated by the Dhirendra Kumar and Usha Devi as truthful and on the basis of certain evidence and material collected during the investigation including mobile phone of the deceased submitted charge sheet against three other persons namely Pradeep Kumar, Dev Singh and Dharmdas @ Dharma and the applicant and two other persons named in the application moved by the above mentioned Dhirendra Kumar were exonerated. It was on 21.03.2017 on an application moved by the prosecution under Section 319 Cr.P.C., the instant applicant and two other co-accused persons were summoned to face trail under Sections 302/34, 201/34, 404/34 I.P.C. by the trial court. This order of the trial court was challenged by the accused persons summoned therein by filing a Criminal Revision No.1481 of 2017 and vide order dated 03.05.2017 passed by a Coordinate Bench of this Court, the applicant and two other co- accused persons were directed to appear before the trial court for the purpose of obtaining bail. The order of Coordinate Bench was challenged by the applicant before Hon'ble Supreme Court by filing Petition (s) Special Leave to Appeal (Crl.) No(s).6351 of 2018 and vide order dated 04.10.2021, the same was dismissed while granting 30 days more time to the applicant and two other co-accused persons to appear before the trial court for the purpose of moving an appropriate bail application. The applicant is stated to have surrendered before the trial court on 10.11.2021, whereon his bail application was rejected. Learned counsel for the applicant submits that the theory as placed by Dhirendra Kumar in his application was not found truthful by the investigating officer and he exonerated the applicant and two other co-accused persons while the charge sheet was submitted against three other accused persons mentioned herein-before and the applicant and two other co- accused persons, who have been summoned by the trial court under Section 319 Cr.P.C., were exonerated. It is further submitted that during the course of investigation, the statement of Dhirendra Kumar and wife of the deceased namely Usha Devi was recorded, wherein it was admitted by them that though the Dhirendra was present in the police station when an application was moved by the brother of the deceased namely Ram Kishun Rajput on 10.01.2009, but he did not tell anything about the alleged incident, which according to him had happened on 09.01.2009 implicating the instant applicant and two other co-accused persons. It is further submitted that it is only on the basis of remote motive i.e. that the deceased was creating hurdles in the mutation of a sale deed, which was allegedly executed by the deceased in favour of the wife of the applicant, the applicant has been falsely implicated in this case. It is also submitted that three other persons namely Pradeep Kumar, Dev Singh and Dharmdas @ Dharma are facing trial, wherein on a different theory, the investigating officer has submitted the charge sheet and the instant applicant and his two associates have been summoned by the trial court under Section 319 Cr.P.C. Thus it is evident that the trial on two set of accused persons is going on in the trial court with two different theories, first on the basis of charge sheet submitted by the investigating officer and second on the application moved by Dhirendra Kumar under Section 319 Cr.P.C. It is also submitted that the applicant has never absconded during the process of trial and it was on account of the fact that he has only challenged the order of the trial court passed on an application moved under Section 319 Cr.P.C. to the High Court and thereafter to the Hon'ble Supreme Court, he did not surrender and under the mandate of the Supreme Court, he has surrendered before the trial court. It is next submitted that applicant is in jail in this case since 10.11.2021 and he is not having any criminal history and there is no apprehension that after being released on bail the applicant may flee from the course of law or may otherwise misuse the liberty. The applicant undertakes that the applicant will remain present before the trial court as and when his presence would be required and will not take adjournment specially when the prosecution witnesses would be in attendance. Shri Ghyan Shyam Das, learned counsel for the informant/complainant vehemently opposes the prayer of bail of the applicant on the ground that the applicant is an accused of a heinous offence and having regard to the statement of two eye witnesses namely Dhirendra Kumar and wife of the deceased (Gajraj) namely Usha Devi, the applicant is not entitled for bail. It is also submitted that the applicant had not appeared before the trial court despite various coercive process have been issued against him and his son, who is also an accused, is also absconding. Learned A.G.A. also supported the submissions made by learned counsel for the informant/complainant and opposes the prayer of bail of the applicant on the ground that the order of the trial court passed under Section 319 Cr.P.C. was challenged by the accused persons/applicant by filing criminal revision and thereafter the order of the Coordinate Bench of this Court was also challenged by filing S.L.P. before the Hon'ble Supreme Court and nowhere, applicant was granted any protection, however, the applicant did not surrender before the trial court and it was only when his S.L.P. has been dismissed, he surrendered before the trial court and having regard to the manner in which the name of the applicant has surfaced in the commission of crime, he is not entitled to be released on bail. Having heard learned counsel for the parties and having perused the record, it is evident that an information at first pertaining to the incident was given by the brother of the deceased in the Police Station Rath on 10.01.2009, wherein it was stated that the deceased has gone out of his house on 09.01.2009 and thereafter his dead body was found hanging on a tree. Perusal of the G.D. entry of the concerned police station, pertaining to this information would reveal that the brother-in- law (sala) of the deceased (Gajraj) namely Dhirendra Kumar was present in the police station when this information was given by the brother of the deceased. Dhirendra Kumar (brother-in-law of the deceased) appears to have given an application on 12.01.2009, wherein it is stated that on 09.01.2009 at about 05:30p.m., the instant applicant along with his two associates assaulted the deceased and thereafter dragged him and after strangulation hanged his dead body on a tree and they (Usha Devi and Dhirendra Kumar) were apprehended and did not tell this incident to anyone. The applicant was not charge sheeted as the investigating officer appears to have adopted a different theory and submitted charge sheet against other three accused persons, however, it was in the year 2017 on an application moved on behalf of the prosecution under Section 319 Cr.P.C. when five prosecution witnesses were testified before the trial court, the applicant and two other co- accused persons were summoned to face trial for the offences mentioned herein-before. The applicant had challenged this order firstly before a Coordinate Bench of this Court by filing a criminal revision and thereafter the order of Hon'ble Single Judge was challenged by filing S.L.P. before Hon'ble Supreme Court, ultimately the S.L.P. was dismissed on 04.10.2021, whereon Hon'ble Supreme Court while noticing that the applicant should have surrendered before the trial court in compliance of order of Hon'ble Single Judge passed in criminal revision, granted 30 days more time to applicant surrender before the trial court. It is not in doubt that the applicant had surrendered before the trial court, a little beyond the time prescribed by Hon'ble Supreme Court. It is vehemently submitted on behalf of the applicant that the allegations against the applicant have been levelled only by Dhirendra Kumar and wife of the deceased Usha Devi while Dhirendra Kumar was present in the police station when an information on 09.01.2009 was given by brother of the deceased and the theory, which has been subsequently developed by Dhirendra and Usha Devi that they were apprehended as they were threatened by the applicant is not acceptable as they subsequently had given the statement against the applicant in the trial. The applicant is aged about 68 years and two different theories i.e. first on the basis of charge sheet filed by the investigating officer and secondly on the basis of which the application under Section 319 Cr.P.C. was moved by the prosecution are being tried by the trial court and veracity of these theories could only be tested during trial. Applicant is in jail in this case since 10.11.2021 without any previous criminal history. The presence of the applicant could be secured before the trial court by placing adequate conditions. The applicant appears to be bonafidely contesting and challenging the order of the trial court passed under Section 319 Cr.P.C. till Hon'ble Supreme Court. Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed. Let the accused/applicant- Parshuram Soni involved in above- mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment and will remain present before the trial court as and when required. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case. Order Date :- 16.5.2022 Anupam S/- Digitally signed by ANUPAM SINGH PATEL Date: 2022.05.17 09:16:06 IST Reason: Location: High Court of Judicature at Allahabad