Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21572 of 2021 Applicant :- Avnish Opposite Party :- State of U.P.
Counsel for Applicant :- Ugrasen Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through video conferencing.
Heard Sri Ugrasen Kumar Pandey, learned counsel for the applicant, Sri Virendra Kumar Maurya, learned AGA 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 Avnish, seeking enlargement on bail during trial in connection with Case Crime No. 201 of 2020, under Section(s) 147, 452, 323, 504, 506, 427, 304/34 I.P.C. registered at P.S. Sidhpura, District Kasganj.
Learned counsel for the applicant argued that in the F.I.R. six accused persons including the applicant have been named and have been assigned a common and general role of assault by lathi and danda as a result of which three persons namely Shashi, Pooja and Dheeraj are alleged to have received injuries. It is argued that out of three alleged injured persons Smt. Pooja subsequently died and she is the deceased. Learned counsel for the applicant argued that occurrence in the present case is of 14.10.2020 at about 19.30 hours for which F.I.R. was lodged on the same day i.e.14.10.2020 at 23.40 hours by Chandrashekhar but Smt. Pooja died after five days of incident i.e. 19.10.2020. It is argued that Smt. Pooja while in an injured condition was medically examined by the doctor in which the doctor has found one lacerated wound on her forehead and was kept under observation, the said injury report is annexed as annexure no. 4 to the affidavit. It is further argued that the other alleged injured person namely Dheeraj is reported to have received one lacerated wound on his head which was found to be simple in nature, copy of said injury report is annexed as annexure no. 5 to the affidavit. It is next argued that medical examination or injury report of other alleged injured namely Shashi has not seen the light of the day. It is argued that Smt. Pooja died on 19.10.2020 and post mortem examination report, copy of which is annexure no. 6 to the affidavit, states the cause of death to be cerebral damage as a result of antemortem injury to head due to blunt force impact. It is argued that the injury which has contributed to death of the deceased Smt. Pooja is a single injury and there is no specification of any particular accused causing the same. It is argued that common and general role to all six accused persons for participating in crime has been levelled.
It is further argued that from the pointing out of co-accused Abhishek a danda alleged to have been used in the present incident has been recovered, but neither from possession nor pointing out of the applicant any incriminating material has been recovered. It is argued that the case of the applicant is distinguishable from the co-accused Abhishek on whose pointing a danda alleged to have been used in the incident, has been recovered. It is argued that co-accused Sarvesh Kumar has been granted bail by this Court today i.e. 27.5.2021 passed in Criminal Misc. Bail Application No. 21537 of 2021(Sarvesh Kumar Vs. State of U.P.). It is argued that the applicant has no other criminal antecedents as stated in para-12 of the affidavit and is in jail since 12.10.2020.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the applicant is named in the F.I.R. and had joined hand with the other co-accused persons and participated in the present case. It is argued that as a matter of fact one person Smt. Pooja who received head injury died subsequently and other injured person namely Dheeraj also received injury, although there is no injury report of Shashi but her presence cannot be disputed. It is argued that the prayer for bail be rejected.
After having heard learned counsel for the parties and perusing the record, it is apparent that as many as six persons have been named in the F.I.R. which includes the applicant, common and general role of assault has been assigned to all six accused persons by lathi and danda, cause of death of Smt. Pooja as opined by the doctor is cerebral damage as a result of antemortem injury received on her forehead.
The case of the applicant is distinguishable from the co-accused Abhishek on whose pointing out a danda has been recovered.
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- Avnish, 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 :- 27.5.2021 Naresh Digitally signed by Justice Samit Gopal Date: 2021.05.28 13:22:03 IST Reason: Document Owner Location: High Court of Judicature at Allahabad