High Court
Case Details
Court No. - 65 Neutral Citation No. - 2023:AHC:193083 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39342 of 2023 Applicant :- Hiralal Opposite Party :- State of U.P. Counsel for Applicant :- Pradeep Kumar,Piyush Patel Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Pradeep Kumar IV, the learned counsel for applicant and the learned A.G.A. for State. Perused the record. This application for bail has been filed by applicant Hiralal seeking his enlargement on bail in Case Crime No. 174 of 2023, under Section 304 IPC, P.S. Dudhara, District Sant Kabir Nagar, during the pendency of trial. Record shows that in respect of an incident, which is alleged to have occurred on 06.06.2023, a delayed F.I.R. dated 7.6.2023 was lodged by first informant Anarjeet (Village Chaukidar) and was registered as Case Crime No. 174 of 2023, under Section 304 IPC, P.S. Dudhara, District Sant Kabir Nagar. In the aforesaid F.I.R., applicant Hiralal has been nominated as solitary named accused. The gravamen of the allegations made in the F.I.R. is to the effect that named accused Heera Lal Nishad and his son Dileep Nishad had a dispute in which they assaulted each other. Injured were taken to hospital where one of the injured Dileep died, whereas the other injured i.e. applicant is undergoing treatment. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. The inquest (panchayatnama) of the body of the deceased was conducted. In the opinion of witnesses of inquest (panch witnesses) the nature of death of the deceased was characterized as homicidal and the cause of death of the deceased was opined as hamorrhage and shock as a result of ante mortem injury. Thereafter, the post mortem of the body of the deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased, found following ante mortem injuries on the body of the deceased:- 1. LW of 12x 0.3 cm on right side chest distance about 7.0 cm from 2.5 cm 2. LW of 1.5 x 0.5 cm x 7.0 cm deep distance about 11 .0 cm .. right nipple 3. LW of 1.0 x 0.5 cm x 12.0 cm deep on left side chest distance about 9.0 cm left nipple 4. LW of 1.0 x 0.5 cm bone deep on left ASP sharp margin. In the opinion of Autopsy Surgeon, the cause of death of deceased was haemorrhage and shock as a result of ante mortem injuries. On the pointing of applicant, the weapon of assault i.e. knife, was recovered on 7.6.2023. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr. P. C. who have supported the F.I.R. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 29.6.2023. whereby applicant has been charge sheeted under Section 304 IPC. Learned counsel for applicant contends that applicant is the father of the deceased. Even though, the applicant is a named and charge sheeted accused yet he is liable to be enlarged on bail. The occurrence giving rise to present criminal proceedings occurred on account of gave and sudden provocation. There is no calculated mens rea with the applicant to commit the crime in question, nor the same is outcome of any pre planned act of applicant. As such, same is covered under the IVth exception to Section 300 IPC. It is on account of above that applicant has been charge sheeted under Section 304 IPC i.e. culpable homicide not amounting to murder. Learned counsel for applicant submits that in any circumstance, the case shall not travel beyond Section 304 Part II IPC. Deceased is the son of the applicant and therefore, applicant is liable to be enlarged on bail. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 07.6.2023. As such, he has undergone almost four months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. Therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends that 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 since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for state, upon perusal of record, evidence, complicity of the accused, accusation made, the nature and gravity of offence, coupled with the fact that the occurrence giving rise to present criminal proceedings occurred on account of grave and sudden provocation, as such, same is covered under Section 304 IPC., it is on account of above, applicant has been charge sheeted under Section 304 IPC i.e. culpable homicide not amounting to murder, the police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such cirucumstance from the record including the custodial arrest of applicant during the pendency of trial. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial, clean antecedents of applicant, the period of incarceration undergone, but without making any comments on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Hiralal involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 sufficient 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 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. (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 :- 6.10.2023 HSM Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad