Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42411 of 2021 Applicant :- Deepu @ Dileep Kumar Rajbhar Opposite Party :- State of U.P.
Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Ajay Kumar Srivastava, learned counsel for the applicant, Sri Akhilesh Kumar Tripathi, 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 Deepu @ Dileep Kumar Rajbhar, seeking enlargement on bail during trial in connection with Session Trial No. 748 of 2021, Case Crime No. 180 of 2021, under Sections 147, 148, 149, 336, 302, 307 I.P.C.
and under Section 7 of Criminal Law Amendment Act, registered at P.S. Cholapur, District-Varanasi.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that in the F.I.R. the applicant and four other accused persons namely Vinod Yadav, Deepu Rajbbar, Chandan, Munna Lal are named and there is a reference of some unknown persons who are alleged to have assaulted the Rakesh Singh the deceased and other persons. It is argued that subsequently the injured persons were interrogated under Section 161 Cr.P.C. in which they have named eight accused persons in total including the applicant. It is argued that the injured Rakesh Singh although has received as many as seven injuries on his body but the doctor conducting post mortem examination has opined the cause of death as coma as a result of head injury which injury no. 1 and 2 on his head. The other injuries are on other parts of the body which have not contributed towards death of the deceased.
It is argued that in so far as three injured persons namely Prem Shankar Tripathi, Bhual Singh and Rajesh Singh are concerned, although they were medically examined but the injury received by Prem Shankar Tripathi has been opined to be simple in nature which was single injury. Bhual Singh was not found to have received any injury on his body. Rajesh Singh has received two injuries from which injury no. 1 was kept under observation but the injury no. 2 was simple in nature which was on left thumb. It is argued that the injury no.1 was on left palm and as such was not on any vital part of the body.
It is argued that common and general role has been assigned to the applicant and the other accused persons. There is no specification of the two injuries received by the deceased on his head and the author of the same is not known. Further it is argued that the applicant has criminal history of three cases which have been disclosed and explained in para-26 of the affidavit in which he has been granted bail; and the said case are minor in nature. Annexure no. 13 has been placed before the Court which are the orders by which the applicant has been granted bail. It is argued that common and general role of assault by lathi, danda and rod has been assigned to all the accused persons. It is further argued the prosecution has shown recovery of rod and danda from the possession of the applicant but the same is a planted recovery. There is no public and independent witness to the same. It is further argued that co- accused persons namely, Monu Rajbhar@ Akhilesh, Munna Lal, Chandan Rajbhar and Vinod Yadav have already been enlarged on bail vide orders dated 27.11.2021, 27.11.2021, 20.12.2021 & 15.12.2021 passed in Criminal Misc. Bail Application No.44039 of 2021, Criminal Misc. Bail Application No.44608 of 2021, Criminal Misc. Bail Application No.43342 of 2021 & Criminal Misc. Bail Application No.37415 of 2021 respectively. It is next argued that applicant has no criminal history as stated in para 22 of the affidavit and he is languishing in jail since 19.05.2021.
Per contra, learned State counsel opposed the prayer for bail and argued that the applicant is named in the F.I.R. and there is allegation of his joining hands with the other accused persons and thereby resorting to assault on the deceased and the injured persons. There are recovery of rod and danda from the possession of the applicant.
After having heard learned counsels for the parties and perusing the record, it is evident that although the applicant is named in the F.I.R. but common and general role of joining hands with the other accused persons and thereby assaulting the deceased and the injured persons has been assigned to the applicant. Cause of death is due to head injury which were two injuries on the head of the deceased for which there is no specification as to who was the author. Injuries of other injured persons are simple in nature. Co-accused have been granted bail.
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- Deepu @ Dileep 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.
Order Date :- 22.12.2021/Sachin/-
(Samit Gopal,J.)