Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46451 of 2017 Applicant :- Agrasen @ Ugrasen Opposite Party :- State of U.P.
Counsel for Applicant :- Manish Chandra Tiwari,Anil Kumar Chaudhary,Dharmaveer Singh,Saroj Kumar Dubey,Sitaram Yadav Counsel for Opposite Party :- G.A.,Chandra Prakash Srivastav,Rakesh Pande with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50087 of 2017 Applicant :- Manish @ Gulsan Opposite Party :- State of U.P.
Counsel for Applicant :- Manish Chandra Tiwari,Anil Kumar Chaudhary,Dharmaveer Singh,Saroj Kumar Dubey Counsel for Opposite Party :- G.A.,Chandra Prakash Srivastav
Hon'ble Samit Gopal,J.
Heard Sri Sunil Kumar, learned counsel for the applicant, Sri Chandra Prakash Srivastav, learned counsel for the first informant and Sri V.B. Upadhyay, learned A.G.A. for the State.
These two bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants, Agrasen @ Ugrasen and Manish @ Gulsan, seeking enlargement on bail involved in Case Crime No. 278 of 2017, under Sections 147, 148, 302, 504, 506 & 427 I.P.C., registered at P.S.
Madhuban, District Mau. They are connected together and are arising out of the same case crime number. Both the cases are being decided together by this order.
The prosecution case as per the first information report lodged on 23.06.2017 is that the first informant had purchased a land from Jhakari. On 22.06.2017 at 6:00 pm the complainant with his brother Dharmdev, Jhakari, his son Ajay, his nephew Atul and Uma Shankar son of Jhakari along with labours were getting the mud excavated on the land for its plinth through a JCB. Accused Dhara, Sharda, Agrasen, Manish @ Gulshan, Smt. Suman and Smt. Meera were having enmity because of the said land who came at the place of occurrence armed with lathi, danda and rod and started abusing them and later on Dhara exhorted the accused persons to kill them on which all the accused persons started assaulting Dharmdev and Jhakari with lathi, danda and rod as a result of which they received injuries and the accused persons ran towards the village. The said incident was witnessed by the first informant and the other persons. The accused persons while running threatened them and even damaged the JCB machine. Dharmdev and Jhakari died while being under treatment.
The postmortem of Jhakari was conducted which is annexed as Annexure -3 to the affidavit in which the doctor found a Stiched wound on his head and there was a fracture on the right frontal and parietal skull bone and below it was intra cerebral haemorrhage. The cause of death was opined to be Coma due to antimortem injury. Further the postmortem examination of Dharm Dev Sharma was conducted which is also annexed as Annexure- 2 in which the doctor found one Contused swelling, one Abrasion, three lacerated wounds, a fracture on right knee joint and fracture on right side 2nd, 3rd, 4th and 5th ribs. In the internal examination the ribs were found to be fractured and the liver was found lacerated. The cause of death was opined to be Haemorrhagic shock due to antimortem injury.
Learned counsel for the applicants argued that the applicants have been falsely implicated in the present case. It is argued that general role has been assigned to all the accused persons in the first information report. While, placing the statement of Ajay Sharma, the copy of which is annexed as Annexure- 4 to the affidavit, learned counsel has pointed out that he has assigned the role of assaulting the deceased Dharam Dev Sharma on his leg to the applicant Agrasen @ Ugrasen. It is further argued that the other witnesses being Uma Shankar Chauhan and the first informant have given general roles to the accused persons. Learned counsel while arguing for accused Manish @ Gulsan has argued that he has in the statement of Uma Shankar Chauhan been assigned the role of having an iron rod with him and thereby assaulting Jhakari with it on his head. It is argued that the said specifications are an afterthought after seeing the injuries from the postmortem examination report. Further it has been argued that co-accused Smt. Sharda Devi, Dhara, Smt. Suman and Meera have been granted bail by co- ordinate Benches of this Court vide orders dated 06.09.2017, 02.11.2017 and 21.09.2017 passed in Criminal Misc. Bail Application Nos. 33254 of 2017, 37565 of 2017 and 36005 of 2017. The copies of the order have been produced which are taken on record.
Learned counsel for the applicants has then argued that the present case will not fall under Section 302 I.P.C. but will be a lesser offence as there was enmity going on between the parties and the incident occurred all of a sudden at the spur of the moment. To buttress this argument he has relied upon the case of Surain Singh Vs. State of Punjab: (2017) 5 SCC 796. It is argued that the applicant Agrasen @ Ugrasen was previously involved in case under Section 188 I.P.C. which is a trivial offence. In so far as, Manish @ Gulsan is concerned he has no criminal antecedents. The applicants are said to be in jail since 29.06.2017.
Per contra learned counsel for the first informant and the learned A.G.A vehemently opposed the prayer for bail and argued that the applicants are named in the first information report. The injuries received by the two deceased persons corroborate with the prosecution versions. It is argued that the co-accused Sharda Devi was a lady and was granted bail due to the said reason. Co-accused Dhara was granted bail as he was assigned the role of exhortation. In so far as, the other two co- accused persons namely Smt. Suman and Meera are concerned they were also ladies. They further argued that the case as relied by the learned counsel for the applicant for the argument that the offence will be a lesser offence is not applicable at this stage as the same was after trial and not at the initial stage of bail under Section 439 Cr.P.C. It is argued that the applicants are named in the first information report. The incident is a day light incident, the motive has been mentioned and the accused persons have been assigned roles of assaulting the deceased which gets corroboration from the postmortem report. It is further argued that trial in the present case has started and three witnesses have been examined in the trial and release of the applicants on bail at this stage may have an adverse effect on trial.
After having heard the learned counsel for the parties and perusing the record, I find that the role of the applicants are distinguishable with that of co-accused persons who have been granted bail. In so far as, the judgement relied by learned counsel for the applicant is concerned in the same there was a further fact that a criminal litigation was going on between the parties and more so the present case is a case in which two persons have lost their lives.
Looking to the facts and circumstances of the case,I do not find it a fit case bail, hence, the bail application is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 6.1.2021/AS Rathore (Samit Gopal,J.)