Called on.
Learned counsel Sri Rajendra Prasad Mishra, Advocate is connected through Video Conferencing in the present matter of e-Court, on behalf of the accused-applicants, namely, Hatim Ali @ Raqeeb Husain and Raja @ Rajan, involved in Case Crime No. 655 of 2020, under Sections 452, 302, 307, 323, 504, 506, 427/34 IPC converted to 304 IPC, Police Station Kudwar, District Sultanpur.
Learned Additional Government Advocate for the State Sri Rajeev Kumar Verma-I, Advocate is also connected through Video conferencing.
Learned AGA is present and informs the Court that he has received the instructions, provided by the State Department and he has to protest the bail plea on the basis of instructions and the copy of the diary available with him.
The occasion of present bail application has arisen on rejection of the bail plea of the accused-applicants by Sessions Judge, Sultanpur vide order dated 03.03.2021.
Heard the learned counsels for the parties and perused the record.
Reading over the First Information Report, learned counsel Sri R.P. Mishra, Advocate submitted that the incident of fracas busted between the rival parties to the incident is admitted, as the members of present accused-applicants' side have also lodged an FIR with regard to the same incident bearing Case Crime No. 654 of 2020, under Sections 323 IPC read with Section 34 IPC and Sections 504, 506 IPC alongwith Section 325 IPC.
Learned counsel submitted that the Case Crime No. 655 of 2020, lodged by the complainant Aabad Ali wherein the present accused-applicants are arraigned as accused, is registered under Sections 452, 323, 504, 506, 427, 34 IPC. Learned counsel drew attention towards the fact that none of the rival parties can be ascertained at this stage of time to be an aggressor in the incident. However, it is admitted that both the parties were involved violently fracas busted on 28.12.2020, wherein on the one hand, the victim from the side of the accused-applicants got serious injuries, therefore the case is lodged under Section 325 IPC and just after the incident, on the other hand, the victim from the complainant's side Bahadur Ali, an old person of 75 years, died.
Learned counsel further submitted that post-mortem report, made Annexure-3 to the affidavit filed in support of the bail application, is sufficiently makes it clear that the cause of death of deceased-Bahadur Ali is not connected with the incident or injuries sustained by him as doctors have opined that cause of death cannot be ascertained and viscera was preserved for medical analysis sent to the Forensic Science Laboratory and the report is still not available.
Learned counsel emphatically submitted that though the medical and ante-mortem report both show the injuries sustained by deceased Bahadur Ali are only abrasions, which is not sufficient to cause death of a person in ordinary course of nature. Learned counsel further submitted that the complainant has assigned specific role to the persons involved in the case from the side of present accused-applicant, namely, Meesam and Nizam Hussain of making fires from country-made pistols and since there was no injury on the body of the deceased of firearms, therefore, they have been granted bail by the trial court itself.
On the ground of aforesaid submissions, learned counsel further submitted that since the present accused-applicants have no any criminal antecedents and the violence fracas between the parties busted only due to their general disputes with regard to the neighbourhood, as such, nothing was premeditated or intended to cause injury to deceased-Bahadur Ali.
He further submitted that since the parties are native of the same village and permanent residents thereof, therefore they are not in a position to flee away from the process of the Court and since the role of present accused-applicants is not directly or indirectly connected with the death of the deceased-Bahadur Ali, therefore, their innocence be taken, as such, for grant of bail.
Learned AGA protesting the bail plea submitted that in the incident dated 28.12.2020, the deceased-Bahadur Ali, just before the death was admitted, therefore the present accused-applicants who are arraigned with the charges under Sections 452, 302, 307, 323, 504, 506, 427/34 IPC converted to 304 IPC, have joint liability for the death of deceased-Bahadur Ali alongwith other other accused. Their role cannot be separated with other accused.
However, learned AGA has not denied the fact that nothing satisfactory evidence is available from the investigation done by the Investigating Officer so as to directly connect the injuries as the cause of death of the deceased, moreover, with the present accused-applicant also. Learned AGA has also not denied that the present-applicants had any criminal antecedents and they are permanent residents of the locality.
Keeping into mind the valuable right of personal liberty and the fundamental principle not to disbelieve a person to be innocent unless held guilty and if he is not arraigned with the charge of an offence for which the law has put on him a reverse burden of proving his innocence as, held in the judgment of Hon'ble the Supreme Court in Dataram Singh Vs. State of U.P. and Others reported in [(2018) 3 SCC 22], I find force in the submission of learned counsel for the bail-applicants to enlarge the accused-applicants on bail.
Considering the rival submissions of learned counsel for the parties, without making any comment as to the involvement, complicity of the accused-applicant in the offence and without making any comment as to the merit of the case, I find force in the submissions of learned counsel Sri R.P. Mishra that there is prima facie case made out for grant of bail to the present accused-applicants and to give the benefit of parity also. The bail application is, therefore, allowed.
Let applicants-Hatim Ali @ Raqeeb Husain and Raja @ Rajan be released on bail in Case Crime No. 655 of 2020, under Sections 452, 302, 307, 323, 504, 506, 427/34 IPC converted to 304 IPC, Police Station Kudwar, District Sultanpur, on his furnishing personal bond worth Rs. 100,000/- (One lac) by each one of them and furnishing of two reliable sureties of the like amount by each one of them to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicants shall file an undertaking to the effect that they 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.
(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants 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 applicants 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 them in accordance with law.
Order Date :- 15.4.2021 kkv/