Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 28833 of 2021 Applicant :- Ankit Opposite Party :- State of U.P.
Counsel for Applicant :- Onkar Singh Counsel for Opposite Party :- G.A.,Mahipal Singh,Santosh Kumar Mishra
Hon'ble Samit Gopal,J.
Heard Sri Onkar Singh, learned counsel for the applicant, Sri Santosh Kumar Mishra, learned counsel for the first informant, Sri Raj Kumar Gupta, learned brief holder for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Ankit, seeking enlargement on bail during trial in connection with Case Crime No. 349 of 2020, under Section(s) 147, 148, 149, 452, 307, 302 I.P.C. registered at P.S. Titavi, District- Muzaffarnagar.
Learned counsel for the applicant argued that in the F.I.R. although the applicant along with five other accused persons are named but general role has been assigned to all the co-accused persons of participating in assault with a country made pistol, rifle and fawra and indiscriminate firing has been stated to have been done and fawra has also been used. It is argued that in the present case Arjun Deshwal is the deceased who although has been noted to have been received seven injuries as per the post mortem report but the doctor has opined the cause of death as shock and haemorrhage as a result of firearm injury which is injury no. 1 being firearm wound of entry whereas the injury no. 5 is the exit wound. It is argued that the injured Anjul Deshwal had appeared for medical examination and also for further X-ray examination but the doctor after medical examination, has opined his injury to be simple in nature.
In so far as the other injured Indu Deshwal is concerned the doctor has opined the injury to be grievous in nature and as per the C.T. Scan of head there is a fracture on the right occipito- parietal bone and depressed fracture of right high parietal bone. Repeated scans were done and the same injury was noted therein. It is argued that as per the F.I.R. there was one other person namely Amardeep who had received injury but Amardeep in his statement recorded under Section 161 Cr.P.C. has stated that he did not receive any injury on his person. He has given the version of the incident wherein he has stated that Sumit who was armed with a country made pistol shot the deceased Sumit and co-accused Parvinder @Prevendra also fired from his country made pistol due to which Arjun and Indu received injuries and fell down.
It is argued that subsequently Indu Kumar Deshwal one of the injured was interrogated who in reply to the questions asked by the Investigating Officer, has stated that the applicant assaulted him with a fawra. It is argued that as such the role assigned to the applicant is of assaulting the injured Indu Kumar Deshwal with fawra and the applicant is not stated to have assaulted the deceased. It is further argued that the present case has a cross version also for which cross report has been registered on the basis of an application moved under Section 156(3) Cr.P.C. in which one Vinod and the present applicant have received injuries. It is argued that the prosecution has not explained regarding the factum of injuries received by Vinod and the applicant in the present case and as such, there is a concealment on behalf of the prosecution. It is argued that as such the present case is a cross case in which both sides have received injuries and one person from the side of the prosecution has died. It is argued that the applicant has no other criminal antecedents as stated in para-38 of the affidavit and is in jail since 31.12.2020.
Per contra, learned AGA and learned counsel for the first informant opposed the prayer for bail and argued that the applicant as per statement of the injured Indu recorded under Section 161 Cr.P.C. has been assigned the role of assaulting him with fawra and he has received injury on his head. But the factum of registration of cross case and also of two persons namely Vinod and the applicant receiving injuries has not been disputed.
After having heard learned counsels for the parties and perusing the record, it is apparent that the present case is a cross case in which both sides have received injuries. Prosecution has not explained the factum of receipt of injury by the applicant and one Vinod.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Ankit, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(V) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
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 :- 12.8.2021 Naresh (Samit Gopal,J.)