Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40450 of 2021 Applicant :- Ashok Kumar Rajbhar Opposite Party :- State Of U.P Counsel for Applicant :- Imran Mabood Khan Counsel for Opposite Party :- G.A.,Amaresh Yadava
Hon'ble Samit Gopal,J.
Heard Sri I.M. Khan, learned counsel for the applicant, Sri Amaresh Yadava, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel 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- Ashok Kumar Rajbhar, seeking enlargement on bail during trial in connection with Case Crime No. 92 of 2021, under Sections 147, 148, 149, 323, 504, 506, 427, 452, 302, 307, 34 I.P.C. & Section 7 of Criminal Law Amendment Act & Section 3/25 and 4/25 Arms Act, registered at Police Station Bardah, District Azamgarh.
The prosecution case as per the first information report lodged on 04.05.2021 by Ramsalat Rajbhar naming the applicant and 05 other co-accused persons along with one unknown person is that on 04.05.2021 at about 5:40 PM due to enmity of Village Pradahan, the accused persons armed with firearms and sharp-edged weapons came to his house and started hurling abuses. They were stopped to do so on which on the exhortation of co-accused Faiz, co-accused Vikrant armed with a country-made pistol fired upon Smt. Poonam which hit her head and she died immediately, co-accused Adya Prasad also armed with firearm fired upon Preeti who received injury and the applicant (Ashok Kumar Rajbhar) armed with country-made pistol fired upon the first informant / Ramsalat Rajbhar but the same missed him after which he assaulted him with the butt of the weapon, he received injury on his face. Ratilal and Pawan were armed with swords and they assaulted Ranjit, who has received injury. After causing injuries, they started firing and ran away. The dead body of Poonam is lying there. They even barged in the house of Chhotey Lal and ransacked it and broke his motorcycle. There is a fear and commotion in the village.
Learned counsel for the applicant argued that the role of the applicant is of initially firing upon the first informant which missed him and then he is said to have assaulted the first informant / Ramsalat Rajbhar with the butt of the country-made pistol. It is argued that although Ramsalat Rajbhar is alleged to have received three contused swellings but the doctor has opined the injuries as simple in nature. It is argued that the case of the applicant is only of firing upon the first informant which missed him and then assaulting him with a butt of the said firearm and even then the injuries received by him are opined to be simple in nature. It is argued that the applicant has been falsely implicated in the present case. It is further argued that co-accused Faiz Ahmad and Satiram Rajbhar, have been granted bail by co-ordinate Benches of this Court vide orders dated 18.08.2021 and 18.10.2021 passed in Criminal Misc. Bail Application Nos.
23233 of 2021 and 39870 of 2021. It has also been pointed out that the applicant is not having any criminal history as stated in para 19 of the affidavit and he is in jail since 14.05.2021.
Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant has been assigned the role of firing upon the first informant which he escaped by his luck and then he was assaulted by the butt of the weapon and as such the applicant is involved in the present case.
After having heard the learned counsel for the parties and perusing the record, it is evident that the applicant is assigned the role of assaulting first informant with the butt of the firearm after the fire on him missed him but the injury has been opined to be simple in nature.
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- Ashok Kumar Rajbhar, 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 :- 27.10.2021 AS Rathore Digitally signed by Justice Samit Gopal Date: 2021.10.29 17:47:44 IST Reason: Document Owner Location: High Court of Judicature at Allahabad