Heard Sri Krishna Chandra Pandey, learned counsel for the applicant, Sri Lalit Kumar Srivastava, learned counsel for the first informant, Sri B.B. Upadhyay, 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 [email protected], seeking enlargement on bail during trial in connection with Case Crime No. 37 of 2021, under Section(s) 302, 34, 323, 504, 506 I.P.C. registered at P.S. Bah, District Agra.
The First Information Report in the present case was lodged by the wife of the deceased stating therein that on 5.3.2021 at about 5.00 P.M. her husband Shareef Khan was called by Nand Kishor Dubey on which she stopped her husband from going as there was enmity between them since before. After which Nand Kishor Dubey, Krishna, [email protected] (the present applicant) and Anuj armed with saria, kulhari, hockey and danda started abusing and dragged her husband on which her daughter started shouting and then assaulted him. He was taken to the Govt. Hospital from where he was referred to higher centre after which he died.
Learned counsel for the applicant argued that in the F.I.R. common and general role has been assigned to all four accused persons including the applicant of assault upon the deceased. The first informant in her statement recorded under Section 161 Cr.P.C. has reiterated the same version as that of the F.I.R. It is further argued that the police on the pointing out of the applicant has shown the recovery of a danda but there is no corroboration of use of the same and the danda is an object which is commonly and easily available. It is argued that the co-accused Nand Kishor has been granted bail by a co-ordinate Bench of this Court vide order dated 27.7.2021 passed in Criminal Misc. Bail Application No. 25464 of 2021, copy of which has been produced before the Court which is taken on record. It is argued that the applicant has no other criminal antecedents as stated in para- 20 of the affidavit and is in jail since 7.3.2021.
Per contra, learned AGA and learned counsel for the first informant opposed the prayer for bail and argued that in so far as the injuries of the deceased are concerned, the doctor has found one abraded contusion, one multiple contusion, one abrasion and two multiple lacerated wound on the body of the deceased and further cause of has been opined by the doctor due to shock and haemorrhage as a result of ante mortem injuries and as such use of danda in the assault cannot be ruled out as the injuries are suggestive of use of danda. But both learned counsels could not dispute the fact that co-accused Nand Kishor has been granted bail a co-ordinate Bench of this Court.
After having heard learned counsels for the parties and perusing the record, it is evident that common and general role has been assigned to all four accused persons including the applicant in the F.I.R. of assaulting the deceased. There is no specification of any weapon with any of the accused persons and there is no specification of role of the accused persons. Co-accused has been granted bail by a co-ordinate Bench of this Court.
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- [email protected], 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 :- 26.8.2021 Naresh (Samit Gopal,J.)