Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31650 of 2021 Applicant :- Naseer Opposite Party :- State of U.P.
Counsel for Applicant :- Sushil Kumar Dubey Counsel for Opposite Party :- G.A.,Raghuraj Singh
Hon'ble Samit Gopal,J.
Heard Sri Sushil Kumar Dubey, learned counsel for the applicant, Sri Raghuraj Singh, learned counsel for the first informant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Naseer, seeking enlargement on bail during trial in connection with Case Crime No. 46 of 2021, under Section 304 I.P.C., registered at Police Station Airwakatra, District Auraiya.
The prosecution case, as per the first information report lodged by Mahesh, the father of the deceased is that on 02.03.2021 at about 10 AM, the applicant, his wife and his son Raja were cutting tree and due to an old enmity, they intentionally made the said wood fall on his daughter due to which she received injuries after which Raja, the son of the applicant then pushed the deceased due to which his daughter rolled down and fell on the roof. She has received serious injuries on her head. It is argued that the first informant in his statement recorded under Section 161 Cr.P.C. has reiterated the same as stated by him in the first information report. Subsequently, one Naresh Chandra was examined as an eye-witness, who has stated that the wood which was being cut by the applicant, fell on his niece due to which she received injuries on her head and body.
Learned counsel has argued that the present case, is a case in which the deceased has not received any injury on her head as is evident from the postmortem report. The injuries received on her body appears to have been received as a result of fall for which role has been assigned to co-accused Raja. It is argued that on the own showing of the first informant, the deceased is said to have received minor injuries due to fall of wood which was being cut by the applicant after which she was stated to have been pushed by Raja and then she fell down on roof and received injuries. It is argued that as such, the role of the applicant is distinguishable with that of co-accused Raja. It has also been pointed out that the applicant is not having any criminal history as stated in para 24 of the affidavit and he is in jail since 2.05.2021.
Per contra, learned counsel for the first informant and learned counsel for the State have opposed the prayer for bail and argued that the applicant is named in the first information report and there is an allegation that due to his act of cutting wood, the deceased had received some minor injuries. Learned counsels did not dispute the fact that the main role has been assigned to co-accused Raja, the son of the applicant, who is stated to have pushed the deceased due to which she fell down on roof and received injuries.
After having heard the learned counsel for the parties and perusing the record, it is evident that the deceased is stated to have been pushed by co-accused Raja due to which she received serious injuries and died. The prosecution case is that of the applicant cutting wood due to which the deceased has received minor injuries.
The case of the applicant is distinguishable with that of co-accused Raja.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant- Naseer, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall file an undertaking to the effect that he 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., 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, in accordance with law, under section 174-A I.P.C.
(v) 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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 :- 27.9.2021 AS Rathore (Samit Gopal,J.)