Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27586
of 2019
Applicant :- Gajendra
Opposite Party :- State of U.P.
Counsel for Applicant :- Vidit Narayan Mishra,Arun Kumar Pandey,Rajesh Kumar Sharma,Suvarna Singh,Upendra Kumar Pushkar,Upendra Singh,Vikas Srivastava
Counsel for Opposite Party :- G.A.,Ankit Agarval
Hon'ble Rajeev Misra,J.
1. Heard Mr. Dharam Pal Singh, learned Senior Counsel assisted by Mr. Rajesh Kumar Sharma and Mr. Upendra Singh, learned counsel for applicant, learned A.G.A. for State and Mr. Ankit Agarval, learned counsel representing first informant.
2. Perused the record.
3. This application for bail has been filed by applicant- Gajendra seeking his enlargement on bail in Case Crime No.1560 of 2018, under sections 304, 34 I.P.C., Police Station- Sector 49 Noida, District- Gautam Buddh Nagar, during pendency of Sessions Trial No.286 of 2018 (State Vs. Lokesh and others) under sections 304, 34 I.P.C., Police Station- Sector 49 Noida, District- Gautam Buddh Nagar arising out of aforementioned case crime number and now pending in the court of VI Additional District Judge, Gautam Buddh Nagar.
4. Record shows that in respect of an incident which is alleged to have occurred on 27.12.2018, a delayed F.I.R. dated 28.12.2018 was lodged by first informant- Birju Yadav and was registered as Case Crime No.1560 of 2018, under section 302 I.P.C., Police Station- Sector 49 Noida, District- Gautam Buddh Nagar. In the aforesaid F.I.R., two persons, namely, Gajendra (applicant herein) and Lokesh have been nominated as named accused.
5. According to the prosecution story as unfolded in aforesaid F.I.R., it is alleged that the alleged incident giving rise to aforementioned criminal proceedings occurred on 28.12.2018 when named accused indulged in firing from the country-made weapon on account which one Harendra sustained fire arm injury and ultimately died.
6. Subsequent to the aforesaid F.I.R. dated 28.12.2018, post- mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, cause of death of deceased was shock and haemorrhage due to ante-mortem gun shot injuries. The autopsy surgeon further found following ante-mortem injuries on the body of deceased.
(1) Stitch wound around Umbilicus 3cm x 3cm.
(2) Surgical wound 3cm in length on Rt side of Neck just above & clavicle.
(3) Tattooing present on area of 22cm x 12cm on Rt side of lower abdomen (near Stitch)
7. After completion of statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C., Investigating Officer ultimately submitted a charge-sheet dated 22.02.2019, whereby two persons, namely, Gajendra (applicant herein) and Lokesh were charge-sheeted for an offence under sections 304/34 I.P.C.
8. The first bail application of applicant came to be rejected by this Court vide order dated 23.04.2019 passed in Criminal Misc. Bail Application No.16707 of 2019 (Gajendra Vs. State of U.P.). For ready reference, same is reproduced herein under:-
"Vakalatnama filed today by Sri Sandeep Kumar Rai, Advocate on behalf of complainant is taken on record.
Heard Sri S.C. Tripathi, learned counsel for the applicant, learned counsel for the complainant as well as Sri C.P. Singh, learned AGA for the State and perused the record.
According to the prosecution case, the F.I.R. was lodged against two accused persons namely, Gajendra and Lokesh alleging that on 27.12.2018 they shot fire at Harendra, he received one gun shot injury on umbilicus, resultantly died. During investigation, it was found that at the time of 'namakaran sanskar' accused and deceased were present there. Harendra shot one opened fire, thereafter Gajendra snatched pistol from Harendra and on the direction of accused Lokesh; Gajendra shot fire at Harendra.
Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present. Deceased admitted in the hospital by applicant. At the time namakaran sanskar, harsh firing was done. There is no independent witness and no legal evidence against the applicant. There was intention of knowledge to kill the deceased. In case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial; he is languishing in jail since 7.1.2019 (more than three and half months) having no criminal history.
Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail and submitted that main role of firing was assigned to applicant. Trial is going on. Applicant killed the deceased. Hence he, is not entitled for bail.
Considering the submissions of learned counsel for the parties, facts of the case, nature of allegation and gravity of offence, without expressing any opinion on the merits of the case, the Court is of the opinion that it is not a fit case for bail. Hence the bail application of applicant Gajendra involved in Case Crime No. 1560 of 2018, under Sections 304, 34 IPC, P.S. Noida Sector 49, District Gautam Budh Nagar is hereby rejected."
9. Subsequent to order dated 23.04.2019, charge-sheeted co- accused Lokesh was enlarged on bail by this Court vide order dated 26.07.2019 passed in Criminal Misc. Bail Application No.17142 of 2019 (Lokesh Vs. State of U.P.). For ready reference, same is reproduced herein under:-
"Counter affidavit filed by the State and rejoinder affidavit filed by the applicant are taken on record.
Heard learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. for the State and perused the material available on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.1560 of 2018, under Section 304/34 I.P.C., Police Station Sector 49 Noida, District Gautam Budh Nagar.
It is submitted by learned counsel for the applicant that according to prosecution version on 27.12.2018 Lala and Dharmendra told the informant that his son Harendra has been murdered by the applicant and co-accused Gajendra. He submits that as per prosecution Shokndra alias Lala and Dharmendra are the eye witnesses of the incident. According to their statement the role of the applicant was one of the exhortation. The applicant has been falsely implicated in the present case. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next submitted that the applicant, having no criminal history, is languishing in jail since 31.12.2018.
Per contra, learned counsel for the complainant as well as learned A.G.A. have opposed the bail prayer of the applicant by contending that there is no reason to falsely implicate the applicant and the applicant is named in the FIR. On the exhortation of the applicant the co-accused has shot the deceased and on the pointing of the applicant country made pistol used in the incident has been recovered.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on the merit of the case, the applicant is entitled for bail, let the applicant- Lokesh involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant will not tamper with the evidence and pressurize the witnesses during trial.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(iii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) 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. is issued and the applicant fails to appear before the court on the date fixed, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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."
10. After submission of above-mentioned charge-sheet, cognizance was taken upon same by court concerned. Thereafter, concerned Magistrate committed the case to the Court of Sessions as offence complained of is triable by Court of Sessions. Resultantly, Sessions Trial No.286 of 2018 (State Vs. Lokesh and others) under section 304, 34 I.P.C., Police Station- Sector 49 Noida, District- Gautam Buddh Nagar arising out of aforementioned case crime number came to be registered and is now pending in the court of VI Additional District Judge, Gautam Buddh Nagar.
11. During pendency of aforementioned sessions trial, P.W.1 Birju Yadav was examined. Testimony of this witness has crystalized the prosecution case by assigning the role of firing to two persons, namely, Gajendra (applicant herein) and Lokesh.
12. Mr. Dharam Pal Singh, learned Senior Counsel assisted by Mr. Rajesh Kumar Sharma and Mr. Upendra Singh, learned counsel for applicant contends that applicant is innocent. He has been falsely implicated in aforementioned case crime number. Allegations made in F.I.R. are false and concocted. Applicant is in jail since 07.01.2019. As such, applicant has undergone almost three years of incarceration. Initially, the F.I.R. was lodged under section 302 I.P.C. but the charge-sheet has been submitted against applicant and other accused under sections 304/34 I.P.C. The maximum sentence that can be awarded for an offence under section 304 I.P.C. is 10 years. Applicant has undergone almost one-third of the sentence prescribed. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
13. Learned Senior Counsel next submits that during pendency of trial P.W.1 Birju Yadav has been examined. His testmony is on record as Annexure- S.A.1 to the supplementary affidavit. On the basis of aforesaid, he submits that as per the testimony of P.W.1 Birju Yadav, role of firing has been assigned to two persons namely Gajendra (applicant herein) and Lokesh. As such, role of applicant is similar and identical to co-accused Lokesh. Co-accused Lokesh has already been enlarged on bail by this Court vide order dated 26.07.2019. Consequently, present applicant is also liable to be enlarged on bail on the ground of parity. It is further submitted that there is no distinguishing feature on record on the basis of which case of present applicant could be distinguished from co-accused Lokesh.
14. It is further submitted by learned Senior Counsel that as per the prosecution story as unfolded in the F.I.R. as well as other material, which has come on record, it is clearly established that there is no mens rea on the part of applicant in committing the alleged crime. Consequently, offence in question shall fall preferably within section 304(2) I.P.C. On the aforesaid premise, it is thus urged that applicant is liable to be enlarged on bail.
15. Per contra, learned A.G.A. as well as Mr. Ankit Agarval, learned counsel representing informant have opposed this bail application. They jointly submit that applicant is a charge- sheeted accused. On account of act of applicant, Harendra (deceased) died due to gun shot injury sustained by him. Role of firing has been assigned to applicant also. As per the prosecution story as unfolded in F.I.R., role of applicant is distinguishable from co-accused Lokesh. As such, applicant does not deserve any sympathy of this Court.
16. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of record, complicity of accused and accusations made, this Court finds that P.W.1 Birju Yadav in his examination-in-chief before court below has assigned the role of firing to two persons, namely, Gajendra (applicant herein) and Lokesh. Co-accused Lokesh has already been enlarged on bail by this Court vide order dated 26.07.2019. Case of present applicant is, therefore, similar and identical to co-accused Lokesh. There is no such material on record on the basis of which, case of present applicant could be distinguished from co-accused Lokesh. Consequently, applicant has made out a case for bail on the ground of parity. Apart from above, this Court further finds that applicant has been charge-sheeted under sections 304/34 I.P.C. Applicant is in custody since 07.01.2019. He has thus undergone almost three years of incarceration. Maximum sentence for an offence under section 304 I.P.C. is 10 years. As such, applicant has already completed almost one- third of the maximum sentence. In view of above, applicant has made out a case for bail. Accordingly, bail application is allowed.
17. Let the applicant Gajendra involved in Case Crime No.1560 of 2018, under sections 304, 34 I.P.C., Police Station- Sector 49 Noida, District- Gautam Buddh Nagar be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.
1. The applicant will not tamper with the evidence during the trial.
2. The applicant will not pressurize/ intimidate the prosecution witness.
3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.
4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.
5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
18. In case of breach of any of the above conditions,the prosecution shall be at liberty to move bail cancellation application before this Court.
19. The party shall file self-attested computer generated copy of this order downloaded from the official website of High Court, Allahabad. 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 :- 16.12.2021 Saif