Court No. - 55
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11000 of 2018 Applicant :- Nand Kishor Opposite Party :- State Of U.P.
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard Shri Manish Tiwari, Advocate at length, learned A.G.A. for State and perused the records.
The applicant is languishing in jail since 3.10.2017, is seeking bail in Case Crime No. 555/2017 U/s 147, 148, 149, 302, 323, 325, 504, 506 IPC Police Station Chhata, District Mathura.
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.
In totality of circumstances, when both the sides have sustained injuries, a general and omnibus role has been attributed to all the 7 accused persons, without specifying the role of applicant. I find that the present case is fit case of bail.
Let the applicant Nand Kishor, 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.
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.
Order Date :- 27.3.2018 Nisha