Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38739 of 2018 Applicant :- Jagnee Opposite Party :- State Of U.P.
Counsel for Applicant :- Ashwini Kumar Awasthi,Manish Tiwary Counsel for Opposite Party :- G.A.
Hon'ble Rajul Bhargava,J.
Heard Sri Ashwini Kumar Awasthi & Sri Manish Tiwary, learned counsels for the applicant, learned A.G.A. for the State and perused the record.
The present bail application has been filed by the applicant in Case Crime No.555 of 2017, under Sections 147, 148, 149, 302, 323, 325, 504, 506 IPC, Police Station Chhata, District Mathura, with the prayer to release him on bail.
Learned counsel for the applicant has submitted at the out-set that in this transaction both the parties have sustained injuries and there is no justification coming forward as to who and under what circumstances the applicant Nand Kishor and Jagni have sustained injuries over their persons and who is the author of those injuries.
Counsel for the applicant has further submitted that a delayed FIR of about 10 hours was lodged at around 18.05 hours by one Smt. Meena against as many as 7 named accused persons including the present applicant with the prosecution story that she along with her husband Ramhet (deceased) and sons Puneet and Raju (injured person) went to agricultural field to fetch fodder for the animals, where they saw that the applicant is demolishing the boundary of the agricultural field of complainant. When objected by her husband (the deceased) then 6 more named accused persons assembled with their respective lathi-danda and Farsa. Nand Kishor (the applicant) was having 'Phavda' and on his exhortation, all of them jointly and indiscriminately assaulted upon her husband, making him unconscious.
When her son tried to save their father, they too were assaulted by lathi and danda, causing serious injuries to them. While going back, they have extended threats for life and have fired 5-6 gun shots. The condition of her husband is precarious one and was admitted from District hospital then to City hospital along with her sons for treatment. Needless to mention here, that these injuries to Ramhet is turn fatal and on 15.10.2017 at 9.00 a.m. on 15.10.1 he took his last breath without giving any dying declaration or 161 Cr.P.C. statement and on 15.10.17 itself the post mortem of deceased was conducted, which reveals that the deceased has sustained 3 injuries over his person, all of them are stitched wound and the cause of death is coma due to ante-mortem head injuries. It is submitted by the counsel for the applicant that out of 7 named assailants, who indiscriminately assaulted by their respective arms, it is not clear that who is the author of those fatal injuries. It has been strenuously argued by Shri Tiwari, Advocate that there is a substantial improvement in 161 Cr.P.C. statements of the alleged eye witnesses without giving any cogent or trustworthy explanation to the injuries sustained by Nand Kishor and Jagni.
Learned Counsel for the applicant submits that the applicant Nand Kishsor and Jagni, the so called named accused persons too have sustained injuries over their person, the radiological report of Jagni shows that there is fracture of radius ulna bones over his right forearm and the police has refused to register their FIR. An application by Smt. Santo wife of Bigha and application U/s 156(3) Cr.P.C. dated 13.10.17 narrating the story and giving the counter version to the entire incident. Under these circumstances, it is difficult at this stage, who is the aggressor where both the parties have sustained injuries. It is further submitted by the counsel that neither in the FIR nor in the 161 Cr.P.C. statement, there is no specific role has been attributed to the applicant nor there is any recovery of any incriminating article from the possession or at the pointing out of the applicant. Under these circumstances, it is further contended by the counsel that there is no criminal antecedent to the credit of applicant. The applicant is languishing in jail since 8.11.2017. Lastly, it is submitted that similarly placed co-accused Nand Kishor and Prem Singh have already been enlarged on bail by the coordinate Benches of this Court in Criminal Misc. Bail Application Nos. 11000 of 2018 and 23457 of 2018 vide orders dated 27.3.2018 & 26.6.2018 respectively.
Learned A.G.A. vehemently opposed the prayer for grant of bail to the applicant but could not point out anything material to the contrary.
Considering the facts and circumstances of the case as also the submissions made, without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail.
Let applicant Jagnee, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following conditions that :-
(1) The applicant shall not tamper with the prosecution evidence;
(2) The applicant shall not pressurize the prosecution witnesses;
(3) The applicant shall appear on the date fixed by the trial Court.
In case of default of any of the conditions enumerated above, the Courts below shall be at liberty to cancel bail of the applicant.
Order Date :- 29.10.2018 Hasnain