The case is called out in e-court.
Learned counsel for the applicant, Sri Rajendra Prasad Mishra, Advocate appears through video conferencing in virtual hearing and learned A.G.A. for the State, Ms. Parul Kant, Advocate also appears through video conferencing in virtual hearing.
The present bail application is filed on behalf of the accused-applicant- Pancham Vishwakarma, who is involved in Case Crime No.0095/2020 under Sections 147, 148, 149, 323, 324, 504, 506, 307, 302, 34 of I.P.C., registered at Police Station - Gaura Chauraha, District- Balrampur.
The occasion of present bail application has arisen on rejection of bail plea of applicant by learned Sessions Judge, Balrampur vide order dated 7.9.2020.
Learned A.G.A. is present to protest the bail-application, to whom the instructions are received.
According to the prosecution story, the accused no.1, Sheshram @ Guddu Vishwakarma had prior enmity with the deceased in relation to the dispute of cutting a tree standing in the field. It is the prosecution case that on the date of incident, all the accused armed with lathi, danda and axe on exhortation of Sheshram @ Guddu Vishwakarma, attacked on the deceased and Sheshram @ Guddu Vishwakarma, inflicted the fatal blow of axe on the head of deceased namely Bahadur Maurya.
Learned counsel for the bail applicant submitted that the post-mortem report wherein the injuries are reported by the doctor during the autopsy made Annexure No.4 to the bail application. The opinion of the doctor in relation to the cause of death is reported, the anti-mortem injuries caused from axe.
In the context of above facts and circumstances of the case, learned counsel for the applicant further submitted that the present accused-applicant has not been specifically assigned with any arm in his hand. A general allegation as to having lathi, danda by all the accused except accused no.1, Sheshram @ Guddu Vishwakarma is assigned. None of the statement of the witnesses is being recorded by the Investigating Officer as to the present accused-applicant causing blow of lathi or danda on the head of deceased. As such there is no evidence as to bearing by the present accused-applicant in furtherance of common intention of killing the deceased, Bahadur Maurya in conformity with the other co-accused jointly.
Learned counsel for the applicant further submitted that the accused-applicant rather falsely implicated for causing blow of lathi, danda over the deceased but in the incident the present accused-applicant has also suffered injuries from the blows of arms by men of other side.
Learned counsel for the applicant further submitted that the present accused-applicant is a common man, local resident of the same village, not in a position to flee away from the process of the court, the investigation has almost completed, he is not in a position to adversely influence or put under threat the witnesses of the case, as such he deserves to be granted bail.
Learned A.G.A. protesting the bail application submitted that the presence of present accused-applicant is admitted at the spot of incident on the relevant date and time. The name of present accused-applicant is mentioned in the F.I.R. as assailant armed with lathi, danda, therefore, the death might have occasioned by the act of accused no.1, Sheshram @ Guddu Vishwakarma but so far as the responsibility of the death is concerned, since all the accused-applicant are arraigned in offence under section 302 I.P.C. with the aid of Section 34 I.P.C., the present accused-applicant cannot avoid his responsibility for the criminal act.
After hearing the rival contentions of learned counsel for the parties, without making any comment as to the merit of the case, complicity and role as well as the involvement of the accused-applicant in the incident, the severity of punishment etc, at this stage, I find force in the submission of learned counsel for the applicant that no prima facie case is made out with regard to the involvement in causing death of the deceased in the incident.
This is to be made here clear that the case of accused no.1, Sheshram @ Guddu Vishwakarma is distinguishable then that of the present accused-applicant as he is specifically assigned arms like axe and stated to have made a blow on the head of the deceased as opined by the doctor, the death of the deceased caused due to head injury.
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 ors. reported in (2018) 3 SCC 22, I find force in the submission of learned counsel for the bail-applicant to enlarge him on bail.
Considering the facts and circumstances of the case, perusing the record, considering the nature of allegations, arguments advanced by learned counsel for the parties and looking into the complicity of the applicant accused in the offence, the gravity of offence, severity of punishment without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Pancham Vishwakarma) involved in Case Crime No.0095/2020 under Sections 147, 148, 149, 323, 324, 504, 506, 307, 302, 34 of I.P.C., registered at Police Station - Gaura Chauraha, District- Balrampur be released on bail on his furnishing personal bond of Rs.1,00,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.
(iv) The applicant 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 him in accordance with law.
Order Date :- 19.5.2021 Gaurav/-