Court No. - 64
Case :- CRIMINAL APPEAL No. - 3349 of 2021 Appellant :- Manikant Mishra Respondent :- State of U.P. and Another Counsel for Appellant :- Sudhanshu Pandey Counsel for Respondent :- G.A.,Arvind Kumar,Hans Raj Singh,Rahul Chaudhary,Sanjeev Patel
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Sudhanshu Pandey, learned counsel for the appellant; Dr. Harshveer Pratap Sharma learned Senior Counsel assisted by Sri Rahul Chaudhary and Sri Arvind Kumar learned counsel for the informant; Sri Ashwani Prakash Tripathi, learned AGA for the State and perused the material placed on record.
2. This criminal appeal under Section 14-A(2) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 19.8.2021, passed by learned Special Judge S.C./S.T. (Prevention of Atrocities) Act/ Additional Sessions Judge, Gorakhpur, in Case Crime No. 291 of 2021, under Sections - 302, 307, 506, 120-B I.P.C. and Section 3(2)5 S.C./S.T. (Prevention of Atrocities) Act, Police Station - Gola, District - Gorakhpur, whereby bail application of the appellant has been rejected.
3. At the outset, learned counsel for the appellant submits, against the FIR lodged on 25.7.2021, the appellant is in confinement since 27.7.2021; the appellant claims to have cooperated in the investigation. In any case he is not shown to have unduly evaded arrest; the appellant has no criminal history; charge sheet has been submitted on 20.9.2021; on prima facie basis, the FIR was lodged against 17 named and two unnamed accused persons whereas (referring to the FIR allegations) the occurrence has been described as a brutal murder committed by four unnamed persons at a public place; later during the investigation statement of the sole injured namely Devi Dayal was recorded wherein he identified and named four assailants namely Vinay Mishra, Pranshu Mishra, Upendra @ Chhote Mishra and Atulya Mishra. At present the appellant is accused of criminal conspiracy to commit the aforesaid alleged offence wherein the deceased was done to death for reason of having married his near relative. The appellant is the paternal uncle of the wife of the deceased; he was not present at the place and time of the occurrence; he has been falsely implicated; in any case the FIR includes the present applicant by way of over implication; there does not exist any credible material to proceed against the appellant on the charge of criminal conspiracy; all the accused have been arrested. The trial will take time to conclude.
4. On the other hand learned Senior Counsel for the informant submits, the occurrence is most heinous being honour killing; wife of the deceased has specifically named the present appellant as being opposed to the marriage performed by her. Thus he would submit, there exists, ample material to establish participation of the present applicant in the criminal conspiracy to commit the heinous offence; he relies on the principle- direct evidence of criminal conspiracy often does not exist; in any case in an occurrence of such nature where the deceased was done to death in an open market place by the close relatives of the appellant, solely for reason of the deceased having married a near relative of the appellant, no entitlement for grant of bail exists at this stage; he has also referred to certain call details to establish that the applicant had spoken to the one of the named assailants on the date of occurrence itself.
5. Learned A.G.A. has vehemently opposed the prayer for bail of the appellant and submitted that the appellant is a near relative of the wife of the deceased; he has also referred to the statement of the wife of the deceased.
6. Having heard learned counsel for the parties and having perused the record, at present, in the first place, as to the occurrence there is no doubt (at this stage), as to the identity of the assailants; the prosecution has identified four persons namely Vinay Mishra, Pranshu Mishra, Upendra @ Chhote Mishra and Atulya Mishra; they are in confinement; the case of the present appellant appears to stand on a different footing inasmuch as the appellant is not a named assailant; in her statement recorded during investigation the wife of the deceased appears to have only stated that the appellant was opposed to the marriage and had claimed a perceived loss of face in the society if she married the deceased. Such a statement though itself may bring out opposition to the marriage performed by the deceased, at the same time, the statement may not establish the charge of criminal conspiracy to commit the heinous offence of honour killing in a public place, even on a prima facie consideration. No other credible material appears to exist to implicate the present appellant in the offence. Mere phone call made to/by a co-accused (closely related), may not establish criminal conspiracy.
7. In view of the above, the appellant is found entitled to grant of bail though on heavy sureties and stipulated terms. The order passed by the learned court below rejecting the bail application filed by the appellant, cannot be sustained as it may result in indefinite detention of the appellant in the facts and circumstances noted above.
8. Without drawing any inference as to facts and leaving all courses open at the trial, in view of the above noted facts & submissions and having regard to the status of the evidence, as has been shown to exist on record, let the appellant be enlarged on bail conditionally at this stage on the terms given below.
9. Accordingly, this appeal is allowed and the impugned order dated 19.8.2021, rejecting the bail of the appellant is set aside.
10. Let the accused-appellant, namely, Manikant Mishra , involved in the aforesaid crime be released on bail on his furnishing personal bonds and two heavy sureties of Rs. 5,00,000/- each to the satisfaction of Court concerned subject to the following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressuring the witness, during the trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv) The appellant shall not make any contact with any member of the family of the deceased, either personally or through telephone, email, social media or in any other manner. He shall furnish an undertaking to the learned Court below, to that effect before being released on bail.
11. In case of breach of any of the above conditions, the bail being granted shall be cancelled. The informant and the wife of the deceased would be at liberty to apply for cancellation of the bail in case of any violation of any of the terms of this order.
12. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
13. It is further made clear, in the event of any measure being adopted by the applicant to either intimidate the wife of the deceased or her child or to even make contact with the first informant or the wife of the deceased or her child either personally or through other means, it may result in immediate cancellation of bail being granted to the applicant.
14. It is expected that the learned trial court shall proceed with the trial with utmost expedition and endeavour to conclude the same most expeditiously. It is further directed that the applicant may not seek adjournments at least up to the stage of testimony of the witnesses of fact and shall cooperate in the trial so that the trial may be concluded expeditiously.
Order Date :- 17.12.2021 Faraz