Called on.
Heard learned counsel for the accused-applicant, learned Additional Government Advocate for the State and perused the material available on record.
The present bail application has been filed by the accused-applicant who is involved in Case Crime No. 260 of 2019, under Section 302 IPC, Police Station Chinhat, District Lucknow.
The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicant by Additional Sessions Judge, court no. 1, Lucknow vide order dated 08.05.2019.
Learned counsel for the accused-applicant, reading over the First Information Report and the statements recorded by the Investigating Officer under Section 161 Cr.PC., pressed the bail plea of the accused-applicant-Ambreesh Kumar Rawat @ Nanha. He submits that the accused-applicant has no any criminal antecedent and so far as the statement of the father of the deceased, recorded by the Investigating Officer under Section 161 Cr.P.C. is concerned, the same discloses that the deceased was in a habit of taking liquor.
According to the First Information Report and the statements recorded by the Investigating Officer during investigation, the deceased was one of the 'Baraati' on 13.03.2019 in the marriage of one neghbouring villager 'Raj Kumar Rawat'. Further, the witness Ashok Rawat (brother of the bride) informed that on the rhythm and sound of DJ, at the ceremonial place when people were dancing, the deceased alongwith the present accused-applicant, the co-accused Mohit and Santi got involved in quarrel for dancing first on the DJ floor. To stop them quarreling 'Ashok Rawat' switched off the music of DJ, but he said the aforesaid accused were angry and dragged away the deceased in a nearby field. Another witness of prosecution, 'Ranjeet Rawat' has also stated to the Investigating Officer about the presence of co-accused and the present accused-applicant alongwith the deceased in the field where subsequently the dead body of deceased was found.
Learned counsel further submits that so far as the allegation of committing murder in connection with the dispute amongst the deceased and the present accused-applicant is concerned, there is no direct evidence.
He further drew the attention towards the post-mortem report where only a contusion over the head of the dead body as antemortem injury is reported and on opening the head echymosis underneath the injury was found, however the doctor opined the death of the deceased-Rajesh Rawat by reason of head injury.
Learned counsel further submits that Ashok Rawat, who is first man who informs the family of the deceased that dead body of the deceased-Rajesh Rawat is lying in the field has nothing stated about the details of the incident, as told to the Investigating Officer, is nothing but improvement of the lodging of FIR.
In view of the aforesaid facts, learned counsel for the bail-applicant submits that the case against the present accused-applicant is based on the circumstantial evidence and, prima facie, there is no evidence that the death of the deceased-Rajesh Rawat is caused by the present accused by infliction of any arm or article over the head of the deceased. So far as the holding the bottle of Sauce is concerned is assigned in the hand of co-accused and a Plywood stripe stated in the hands does not seem sufficient in the ordinary course of nature to cause the head injury as reported in the post-mortem examination under the heading 'Ante mortem injury'.
Learned counsel, on the basis of his opening argument, as to the absence of any criminal antecedent against the present accused-applicant impressed on his innocence, submits that he is a local and native person of the village and is not a person who is capable of fleeing away from the process of the court, rather he is ready and willing to face the trial wherein investigation has already been concluded and chargesheet has been submitted before the court, as such he deserves to be released on bail.
Learned AGA, on the other hand, submits that there is clinching evidence as against the present accused-applicant alongwith the co-accused as they were last seen alongwith the deceased, when he was alive, near the spot where his dead body was found. The dead body was recovered in the field nearby the place of marriage ceremony which is also established by the prosecution witnesses in their statements recorded by the Investigating Officer.
Learned AGA further submits that in the matter investigation is completed and chargesheet is submitted. So far as the absence of criminal antecedent on the part of the accused-applicant is concerned, learned AGA has no denial on the basis of instructions and case diary received to him by the State.
Learned counsel for the accused-applicant, in rebuttal to the argument made by the learned AGA with regard to the culpability of the present accused-applicant, submits that there is suspicion and the presumption only under the circumstances, otherwise, in the statements recorded by Investigating Officer, there are two accused who are suspected with the liability for the death of the deceased and there is only one contusion on the head of the deceased, as per post-mortem report by the doctors. As such, unless it is proved by the evidence in the course of the trial that the fatal blow was inflicted by the present accused-applicant, he cannot be taken as offender of murder under the circumstances.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which he is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant is entitled to be released on bail in this case.
Let applicant-Ambreesh Kumar Rawat @ Nanha be released on bail in Case Crime No. 260 of 2019, under Section 302 IPC, Police Station Chinhat, District Lucknow, on his furnishing a personal bond of Rs. 100000/- (one lac) and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The case of present accused-applicant is distinguishable from that of the co-accused Mohit and Santi.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(iii) 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 of the Indian Penal Code.
(iv) 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. is issued and the 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 of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
Order Date :- 25.1.2021 kkv/