High Court
Case Details
Neutral Citation No. - 2023:AHC:192195 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 58872 of 2022 Applicant :- Adesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Akash Tomar Counsel for Opposite Party :- G.A.,Adesh Kumar Hon'ble Vikram D. Chauhan,J. 1. Learned A.G.A. for the State submits that instructions have been received and has no objection in case the bail application is heard on merits.
Legal Reasoning
2. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 3. It is submitted by learned counsel for the applicant that as per the first information report, it is alleged that the nominated accused persons including the applicant had assaulted the victim and his family members, as a result of same, injured Rajan has suffered firearm injury. Specific role of firing on the injured Rajan has been assigned to the applicant. 3-A. Learned counsel for the applicant submits that the place of incident is dharam kanta which was owned by the applicant. The injured along with other persons reached the dharam kanta of the applicant and thereafter the applicant was cornered in one room. The injured and other persons were trying to catch hold the applicant and as a result of same, single gun shot was fired by the applicant in self defence, as the injured and other persons were aggressor on the dharam kanta of the applicant. He further submits that no offence under Section 307 I.P.C. is made out and at the best, the offence will be an offence under Section 308 I.P.C. for which the maximum punishment is three years. 3-B. Learned counsel for the applicant submits that although the injured Rajan had suffered firearm injury but the same is single gun shot injury. The injured was medically examined. No blackening and tatooing was present, as per medical report which is at page-33 of the paper-book. Subsequently, the injured was examined by a private doctor, where, blackening and tatooing was shown to be present. It is further submitted that even the statement of the injured, which is at page 49 of the paper-book, also fixes the place of the incident as the dharam kanta of the applicant. There was prior enmity and the injured and other persons were the aggressors and once the applicant was cornered, the applicant to save his life, has fired as a result of the same injured has sustained gun shot injury. There was no intention of the applicant to commit culpable homicide. Further, in view of the intervening circumstances, the applicant had no other option except to save his life, therefore, the aforesaid incident had taken place. The applicant has no previous criminal history. Applicant is languishing in jail since 20.06.2022 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial. 4. Sri Adesh Kumar, learned counsel for the informant submits that the injured has suffered single firearm injury in the abdomen area which is dangerous to life, as per medical report. Injury has been caused by the applicant and the injured has supported the prosecution story. The recovery of the incriminating weapon has been made from the possession of the applicant. He further submits that the applicant is not participating in the trial court proceedings. 5. At this stage, learned counsel for the applicant gives an undertaking that he will participate in the trial court proceedings and will not seek any unnecessary adjournments and applicant will be present on the date fixed before the trial court unless specifically exempted by the trial court in writing. 6. Learned A.G.A. for the State opposed the prayer for bail but does not dispute factual matrix of the case. 7. Learned AGA for the State has not brought any fact or circumstances to indicate criminal history or antecedents of the applicant which would disentitle the applicant for Bail. 8. It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court. 9. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned AGA for the State has not shown any exceptional circumstances which would warrant denial of bail to the applicant. 10. No material, facts or circumstances has been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence. 11. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State. 12. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 13. In the present case, it is to be seen that the injured Rajan has suffered single gun shot injury in the abdomen. As per the prosecution case, the injured had went to the dharam kanta of the applicant, where, the applicant was cornered in the room and the injured along with others were trying to catch hold the applicant as a result of the same, the applicant had fired single gun shot. Injuries received by injured are dangerous to life as per medical report. Further, it is to be seen that in the present case the injured and other persons were aggressors on the dharam kanta of the applicant, which is admitted as per the statement of the injured. 13-A. On a pointed query being made to the learned counsel for the informant, as to why, the informant and the injured went to the dharam kanta of the applicant, to which, no explanation has been offered. Once there is a dispute between the parties and the applicant has been cornered in a room then it cannot be said that the applicant had any prior intention of committing culpable homicide. However, at the best, the offence may travel under Section 308 I.P.C. The maximum punishment provided under Section 308 I.P.C. is seven years. Applicant is in jail since 20.06.2022. Applicant has no previous criminal history. Incident occurs at the spur of moment. 14. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 15. Let the applicant Adesh Kumar involved in Case Crime No. 96 of 2022, under Sections 323, 324, 307, 504, 506 and 352 I.P.C., Police Station Phalawda, District Meerut, be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing. viii. The applicant shall remain present on the date fixed before the trial court and shall participate in the trial court proceedings. ix. In case of absence of the applicant in the trial court proceedings on any date fixed without prior exemption in writing, the trial court shall be at liberty to take coercive process by issuing warrant against the applicant. x. The trial court shall make an endeavor to complete the trial court proceedings within one year from the date of filing of certified copy of this order without granting unnecessary adjournments to either of the parties. 16. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. Order Date :- 5.10.2023 S.Prakash Digitally signed by :- SHASHI PRAKASH High Court of Judicature at Allahabad