Rejoinder Affidavit filed today is taken on record.
Heard Sri Ashwani Mishra, Advocate holding brief of Sri Vishnu Dutt Tiwari, learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicant seeking bail in Case Crime No.96 of 2020, under Sections 323, 504, 506, 307, 394, 364A, 377 & 325 I.P.C., Police Station Shahganj, District Agra during the pendency of trial.
Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the present case due to some ulterior motive. As per F.I.R. the incident took place on 19.02.2020 near Gurudwara Garden at about 7.30 P.M. when the informant was going by his Motor Cycle three persons coming from the opposite side by a car have beaten and threatened the informant for dire consequences as a result there of he sustained injuries.
It is submitted by learned Counsel for the applicant that in the first information report the allegations were made against unknown persons. Initially a Non-Cognizable Report was lodged and subsequently, on the basis of statements of the informant recorded under Section 161 Cr.P.C. the case was developed identifying the role of each of the accused person for assault and exhortation except the role of co-accused, Irshad for committing unnatural offence under Section 377 I.P.C. The victim in his statements recorded under Section 164 Cr.P.C. again reiterated the version of Non-Cognizable Report and has not identified a single accused for the specific allegations as made in the statements under Section 161 Cr.P.C.
Learned Counsel for the applicant further submits that as per medical report the injuries caused to the informant/injured are simple in nature except the injury whereby seventh rib of the injured was fractured. He also submits that all the injuries are not on the vital parts and simple in nature, at the most the case under Section 325 I.P.C. is made out, which is bailable.
Learned Counsel for the applicant next submitted that as per the statements of the doctor, Sri Vaibhav Sharma, Assistant Professor, S.N. Medical College, Agra the unnatural offence has not been committed and no injury as alleged has been sustained to the informant. It is also submitted that the report of the Forensic Department, U.P. Agra shows that some sperms were found on item no.5 (Underwear of the informant) but there is no sperm available on item nos.1 to 4 and 6 to 8. Lastly it is submitted that the applicant is in jail since 01.03.2020 having criminal history of three cases, which has been explained in paragraph no.3 of the supplementary affidavit, in all the three cases he is on bail and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Learned AGA has opposed the prayer for bail but could not dispute the aforesaid facts as argued by learned counsel for the applicant.
Having heard the submissions of learned counsel of both sides, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let the applicant, Bablu Kuraishi, who is involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
1. The applicant will attend and co-operate the trial proceedings pending before the court concerned on the date fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.
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 :- 25.8.2021 S.P.