Reserved on 12.10.2018 Delivered on 30.10.2018
Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39765 of 2018 Applicant :- Dharmendra Harijan Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajendra Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Suneet Kumar, Advocate holding brief of Mr. Rajendra Kumar Singh, the learned counsel for the applicant and the learned A.G.A. for the State.
Perused the record.
2. This application for bail has been filed by the applicant Dharmendra Harijan seeking his enlargement on bail in Case Crime No. 0056 of 2018, under Sections 363, 366, 306, 309 I.P.C., Police Station Panvara, District Jaunpur during the pendency of the trial in the above mentioned case crime number.
3. From the record, it appears that Km. Sakshi who is a student of Class XII and aged about 16 years and 18 days, came to Allahabad along with the applicant Dharmendra. As the applicant and Km. Sakshi went to take view of the Yamuna Bridge, the girl Km. Sakshi jumped from the Yamuna Bridge. Immediately, the boy namely, Dharmendra the applicant herein to save the young girl also jumped. Unfortunately, the girl Km. Sakshi died of drowning, whereas the boy Dharmendra was saved by the Fishermen. An information to this effect was given by the Security Officer, Yamuna Bridge on telephone to the father of the deceased. Thereafter, the applicant Dharmendra was admitted at S.R.N. Hospital, Allahabad on 5th June, 2018. It is the case of the applicant that as the applicant was not being treated properly and effectively, he was shifted to Pranjal Clinic, Mungra Badshahpur. The same is established from the medical prescription pertaining to the applicant, photo copies of which have been collectively filed as Annexure-2 to the affidavit accompanying the present bail application. At this juncture, an information was given by the Security Officer, Yamuna Bridge on telephone to the father of the girl that the her daughter, namely, Km. Sakshi has died on account of drowning, whereas the fishermen have saved the life of the applicant Dharmendra. The F.I.R. in respect of the aforesaid incident was lodged on 8th June, 2018 i.e. three days after the occurrence and the same was registered as Case Crime No. 0056 of 2018, under Sections 363, 366 I.P.C., Police Station Panvara, District Jaunpur. In the aforesaid F.I.R. two persons namely, Dharmendra the applicant herein and Sabhajeet were nominated as the named accused. The postmortem of the deceased was conducted on 10th June, 2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of the death of the deceased is Asphyxia due to ante-mortem drowning. The matter has been investigated and during the course of the investigation, Sections 306 and 309 I.P.C. have been added.
4. Learned counsel for the applicant submits that the applicant is a young boy aged about 17 years having no criminal antecedents to his credit except the present one. He is in jail since 23rd August, 2018. The deceased has died on account of Asphyxia due to ante-mortem drowning. There is no such evidence upto this stage on the basis of which it can be said that the applicant has aided, conspired or instigated in the commission of the alleged crime. It is, thus, urged that there is no abetment on the part of the applicant. The charge under Section 306 I.P.C. is subject to trial evidence. No offence under Sections 363 and 366 I.P.C. is made out against the applicant. The witnesses, whose testimonies have been recorded by the Investigating Officer under Section 161 Cr.P.C., do not support the prosecution story. The co-accused Sabhajeet has already been enlarged on bail by the Court below vide order dated 20th August, 2018. On the aforesaid factual premise it is also urged that the applicant is also liable to be enlarged on bail.
5. Per contra, the learned A.G.A. for the State has opposed the prayer for bail of the applicant. He submits that the applicant is one of the named accused in the F.I.R. The deceased had come to Allahabad in the company of the applicant and she died while she was in the company of the applicant. As such, the present bail application of the applicant is liable to be rejected. However, the legal and factual submissions raised by the learned counsel for the applicant could not be disputed by the learned A.G.A.
6. Keeping in view the nature of the offence, evidence, complicity of the applicant, submissions of the learned counsel for the parties, but without commenting on the merits of the case, I am of the view that the applicant has made out a case for bail.
7. Let the applicant Dharmendra Harijan 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
8. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
(Rajeev Misra, J.) Order Date :- 30.10.2018 Sushil/-