High Court · 2025

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant Diwan Khan against the bail rejection order dated 26.4.2024 passed by Special Judge (SC/ST Act)/ Additional Sessions Judge, Court No. 15, Allahabad in Bail Application No. 1663 of 2024 in S.S.T. No. 147 of 2024, case crime no. 169 of 2024 under Sections 147,148, 149, 307, 323, 504, 506, 302, 34 I.P.C. and under Sections 3(2)5, 3 (1)(Da), 3 (1)(Dha) SC/ST Act, Police Station- Meja, District- Prayagraj.

2. Heard Shri Apul Misra, learned counsel for the appellant, Smt. Shaili Ganguly, learned counsel for the informant and Shri A.K. Shukla, learned A.G.A.-I and Shri Nitesh Kumar Srivastava, learned AGA and perused the entire record.

3. The prosecution has come forward with a case that in the morning of 26.3.2024 the named accused persons Sahil Khan, Mumtaz, Diwan, Imram made an assault upon Om Prakash, the elder brother of the informant, Satya Akash with katwasa, spade and lathi. The informant and his family members were also attacked and a blow of spade was also inflicted by accused Shebu upon the informant. All the injured sustained serious injuries and were medically examined. FIR was lodged and now the charge sheet has been submitted against all the named accused persons.

4. It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. He has not committed the present offence. Alleged offences are not attracted against him. Essential ingredients to establish an offence under SC/ST Act are also missing in this case. It is further submitted that initially the FIR was lodged under Section 307 I.P.C. but it is said that after 9 days of the incident the injured Om Prakash died and significantly no statement under Section 161 Cr.P.C. or any statement in the form of dying declaration of injured Om Prakash was recorded by the I.O. or any other authority during the period of 9 days. It is further submitted that the autopsy report does not favour the prosecution and in the post mortem report it has been mentioned that the cause of death was 'acute cardio pulmonary arrest' which shows that the injuries allegedly sustained by the deceased in the alleged occurrence were not the cause of death of injured Om Prakash. It is also submitted that the doctor in his statement has also corroborated the aforesaid facts having given in the post mortem report. It is also submitted that the other injured persons of the occurrence have sustained only simple injuries. It is also submitted that the prosecution has assigned absolutely no motive to commit the crime on the part of the present appellant. It is further submitted that the prosecution story reveals that it was a sudden quarrel and the matter was not liable to come within the purview of Section 302 I.P.C. It is also submitted that the prosecution is under obligation to show that there was a motive or intention to kill but no such intention or motive has been shown by the prosecution. It is further submitted that the prosecution claims that the deceased died of ante mortem head injury as disclosed in the post mortem report but the evidence of fact is silent on this point as to who was the author of the said fatal injury. It is further submitted that the motive to cause grevious injuries may maximum be presumed but there was no intention to kill on the part of the appellant. It is also submitted that the occurrence happened near the house of the accused persons. It is further submitted that criminal history of the appellant is explained in the affidavit. The trial Court while passing the impugned order did not take into account the facts and evidence available on record in right perspective and erred in passing the same. Appellant is in jail since 27.3.2024. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court.

5. On the other hand, learned State counsel and learned counsel for the informant vehemently opposed the appeal moved by the accused appellant and it has been submitted that that the appellant committed the present offence having knowledge that the victim belonged to scheduled caste community. It is further submitted that since the parties were well known to each other, the appellant is aware of the fact that the informant side belongs to SC/ST community. It is further submitted that serious injuries have been found in the CT Scan report of deceased Om Prakash by the doctor and the CT findings in respect of deceased were "suggestive comminuted displaced fracture in frontal bone extending posteriorly into bilateral parietal bone associated with pnemocephalus with scalp hematoma in left fronto parietal region of scalp with hemorrhagic cerebral contusions in bilateral fronto parietal lobe with mild edema and Subdural Hemorrhage along falx cerebri and Subdural Hygroma in right frontoparietal region and Subarachnoid Hemorrhage in bilateral frontoparietal region" and at the same time in the CT Scan of injured Shashikant "Laceration in frontal region of scalp with scalp hematoma involving right parietal region of scalp and in left parietal region" was found. It is also submitted that in the post mortem report of deceased Om Prakash the cause of death has been disclosed as coma due to ante mortem head injury. It is further submitted that during the investigation ample evidence has been collected by the I.O. against all the accused persons and charge sheet against them has been submitted. It is further submitted that prior to the present occurrence the son of the deceased was beaten by the accused persons Sahil and Diwan in the month of February, 2024 and the FIR in this connection was lodged on 16.2.2024. It is further submitted that the murder weapons lathi, danda, spade etc. have been retrieved by the police on the pointing out of accused Mumtaz. It is further submitted that the offence is very serious and he is not entitled for bail. There is no infirmity or illegality in the impugned order dated 26.4.2024. On these grounds prayer for dismissal of the appeal and rejection of the bail application has been made.

6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

7. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has properly considered the case of the appellant while deciding the bail application. This is a case of murder and causing injuries to several persons from the informant side based upon the ocular evidence of the injured/ eye-witnesses along with the recovery of murder weapons followed by a prompt FIR and medical evidence.

8. Hence, having regarding to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, the Court is of the opinion that the appellant has not made out a case for bail. The Court concerned passed a reasoned order while rejecting the bail application of the appellant. The impugned order does not suffer from infirmity and illegality and the same is liable to be affirmed and the appeal is liable to be dismissed.

9. Accordingly, the impugned order rejecting the bail application of the appellant is affirmed and the appeal is dismissed. Order Date :- 16.1.2025 Fhd FAHAD NIYAZ High Court of Judicature at Allahabad

Hon'ble Nalin Kumar Srivastava,J.

1. This criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant Diwan Khan against the bail rejection order dated 26.4.2024 passed by Special Judge (SC/ST Act)/ Additional Sessions Judge, Court No. 15, Allahabad in Bail Application No. 1663 of 2024 in S.S.T. No. 147 of 2024, case crime no. 169 of 2024 under Sections 147,148, 149, 307, 323, 504, 506, 302, 34 I.P.C. and under Sections 3(2)5, 3 (1)(Da), 3 (1)(Dha) SC/ST Act, Police Station- Meja, District- Prayagraj.

2. Heard Shri Apul Misra, learned counsel for the appellant, Smt. Shaili Ganguly, learned counsel for the informant and Shri A.K. Shukla, learned A.G.A.-I and Shri Nitesh Kumar Srivastava, learned AGA and perused the entire record.

3. The prosecution has come forward with a case that in the morning of 26.3.2024 the named accused persons Sahil Khan, Mumtaz, Diwan, Imram made an assault upon Om Prakash, the elder brother of the informant, Satya Akash with katwasa, spade and lathi. The informant and his family members were also attacked and a blow of spade was also inflicted by accused Shebu upon the informant. All the injured sustained serious injuries and were medically examined. FIR was lodged and now the charge sheet has been submitted against all the named accused persons.

4. It is submitted by the learned counsel for the appellant that the appellant is innocent and has been falsely implicated in this case. He has not committed the present offence. Alleged offences are not attracted against him. Essential ingredients to establish an offence under SC/ST Act are also missing in this case. It is further submitted that initially the FIR was lodged under Section 307 I.P.C. but it is said that after 9 days of the incident the injured Om Prakash died and significantly no statement under Section 161 Cr.P.C. or any statement in the form of dying declaration of injured Om Prakash was recorded by the I.O. or any other authority during the period of 9 days. It is further submitted that the autopsy report does not favour the prosecution and in the post mortem report it has been mentioned that the cause of death was 'acute cardio pulmonary arrest' which shows that the injuries allegedly sustained by the deceased in the alleged occurrence were not the cause of death of injured Om Prakash. It is also submitted that the doctor in his statement has also corroborated the aforesaid facts having given in the post mortem report. It is also submitted that the other injured persons of the occurrence have sustained only simple injuries. It is also submitted that the prosecution has assigned absolutely no motive to commit the crime on the part of the present appellant. It is further submitted that the prosecution story reveals that it was a sudden quarrel and the matter was not liable to come within the purview of Section 302 I.P.C. It is also submitted that the prosecution is under obligation to show that there was a motive or intention to kill but no such intention or motive has been shown by the prosecution. It is further submitted that the prosecution claims that the deceased died of ante mortem head injury as disclosed in the post mortem report but the evidence of fact is silent on this point as to who was the author of the said fatal injury. It is further submitted that the motive to cause grevious injuries may maximum be presumed but there was no intention to kill on the part of the appellant. It is also submitted that the occurrence happened near the house of the accused persons. It is further submitted that criminal history of the appellant is explained in the affidavit. The trial Court while passing the impugned order did not take into account the facts and evidence available on record in right perspective and erred in passing the same. Appellant is in jail since 27.3.2024. It is lastly submitted that the impugned order rejecting the bail application of the appellant suffers from infirmity and illegality warranting interference by this Court.

5. On the other hand, learned State counsel and learned counsel for the informant vehemently opposed the appeal moved by the accused appellant and it has been submitted that that the appellant committed the present offence having knowledge that the victim belonged to scheduled caste community. It is further submitted that since the parties were well known to each other, the appellant is aware of the fact that the informant side belongs to SC/ST community. It is further submitted that serious injuries have been found in the CT Scan report of deceased Om Prakash by the doctor and the CT findings in respect of deceased were "suggestive comminuted displaced fracture in frontal bone extending posteriorly into bilateral parietal bone associated with pnemocephalus with scalp hematoma in left fronto parietal region of scalp with hemorrhagic cerebral contusions in bilateral fronto parietal lobe with mild edema and Subdural Hemorrhage along falx cerebri and Subdural Hygroma in right frontoparietal region and Subarachnoid Hemorrhage in bilateral frontoparietal region" and at the same time in the CT Scan of injured Shashikant "Laceration in frontal region of scalp with scalp hematoma involving right parietal region of scalp and in left parietal region" was found. It is also submitted that in the post mortem report of deceased Om Prakash the cause of death has been disclosed as coma due to ante mortem head injury. It is further submitted that during the investigation ample evidence has been collected by the I.O. against all the accused persons and charge sheet against them has been submitted. It is further submitted that prior to the present occurrence the son of the deceased was beaten by the accused persons Sahil and Diwan in the month of February, 2024 and the FIR in this connection was lodged on 16.2.2024. It is further submitted that the murder weapons lathi, danda, spade etc. have been retrieved by the police on the pointing out of accused Mumtaz. It is further submitted that the offence is very serious and he is not entitled for bail. There is no infirmity or illegality in the impugned order dated 26.4.2024. On these grounds prayer for dismissal of the appeal and rejection of the bail application has been made.

6. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the impugned order carefully.

7. It appears from the arguments advanced by the counsel for the parties and from perusal of material on record that the trial court has properly considered the case of the appellant while deciding the bail application. This is a case of murder and causing injuries to several persons from the informant side based upon the ocular evidence of the injured/ eye-witnesses along with the recovery of murder weapons followed by a prompt FIR and medical evidence.

8. Hence, having regarding to the facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, the Court is of the opinion that the appellant has not made out a case for bail. The Court concerned passed a reasoned order while rejecting the bail application of the appellant. The impugned order does not suffer from infirmity and illegality and the same is liable to be affirmed and the appeal is liable to be dismissed.

9. Accordingly, the impugned order rejecting the bail application of the appellant is affirmed and the appeal is dismissed. Order Date :- 16.1.2025 Fhd FAHAD NIYAZ High Court of Judicature at Allahabad