Heard learned counsel for the appellant, learned A.G.A. for the State, Sri Upendra Kumar Singh holding brief of Sri Ram Chandra Dwivedi, learned counsel for opposite party no.2 and perused the record.
This appeal has been filed for setting aside the order dated 09.4.2021 passed by Special Judge SC/ST Act/ Additional Sessions Judge, Court No. 2, Unnao in Bail Application No. 848 of 2021, arising out of S.S.T. No. 610 of 2020, Case Crime No. 305 of 2019, under Sections 147, 302, 201 I.P.C. and Section 3(2) 5 of SC/ST Act, P.S. Fatehpur Chaurasi, District Unnao.
As per prosecution case, on 16th August, 2019, the informant had given an application to S.H.O. P.S. Fatehpur Chaurasi, District Unnao alleging that on 14th August, 2019, his son, namely, Ramakant (deceased) went out of the house in the evening at 5 p.m. On the same day, at about 8 p.m., Sonu s/o Ram Dulare came to the house of the informant and handed over the bicycle of the son of the informant along with his mobile and told that his son Ramakant is on the bridge. Thereafter, on 16th August, 2019, at about 8 a.m., the informant came to know that one dead body is floating in the water. The informant along with family members reached there and identified the body as his son.
Learned counsel for the appellant submits that on the said information, the inquest of the body of the deceased was conducted by the police officers on the same day, i.e., on 16.08.2019 in the presence of the informant and other witnesses. It is further submitted that the witnesses of the inquest opined that cause of death is drowning. Thereafter, body was sent for post mortem, the report of which, was sent to the concerned police station. Learned counsel for the appellant submits that the post mortem report reveals that no anti mortem injury was found on the body of the deceased and the cause of death is drowning. He also submits that after about 4 months 16 days from the date of incident, F.I.R. No. 305 of 2019 was lodged by the informant on 30.12.2019.
In the F.I.R., it is alleged that on 14th August, 2019, at about 5 p.m., one Sonu Nishad called the son of the informant, who went out of the house with him. It is further alleged in the F.I.R. that when, his son did not come back, the informant started searching him. At about 9.30 p.m., Sonu came to the house of the informant along with the bicycle and mobile of his son, however, on being asked about the Ramakant, without informing about his location, Sonu left the bicycle and mobile and run away. Allegation was made in the F.I.R. that the informant had apprehension that due to enmity, Sonu, Harishanker Nishad, Prem Shanker (applicant), Devki, Ram Dulare assaulted his son after killed him by way of drowning.
Learned counsel for the appellant submits that statement of the informant was recorded under Section 161 Cr.P.C., in which, he narrated the same version as stated in the F.I.R. Statement of the doctor was also recorded, who stated that the cause of death is drowning. Learned counsel for the appellant vehemently submits that the doctor, in his statement, stated that no anti mortem injury was found on the body of the deceased. Thereafter, statement of informant was again recorded under Section 161 Cr.P.C., in which, he developed a new case and stated that accused persons forced to the son of the informant for drinking liquor and thereafter killed him. Learned counsel for the appellant also submits that statement of alleged co-accused Sonu was also recorded on 01.08.2020, i.e., after about one year, in which, he stated that on the date of incident, on some altercations in between Devki, Hari Shanker and Ramakant, they started assaulting Ramakant with the kicks and punches and thereafter killed Ramakant by strangulating. Learned counsel for the appellant submits that later on, Investigating Officer deleted the name of Sonu and after recording his statement, he has been arrayed as an approver.
Learned counsel for the appellant further submits that co-accused Devki having identical role to that of appellant has already been granted bail by this Court vide order dated 29.6.2021 passed in Criminal Appeal No.1206 of 2020 and the case of the appellant is not on worse footing than that of the co-accused, therefore, on the ground of parity also the appellant is entitled for bail.
Several other submissions in order to demonstrate the falsity of the allegations made against the appellants have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of the trial/appeal being allowed after final hearing takes place. Submission is that the appellants were on bail during the course of trial which was never misused by them. It has been pointed out that the appellant is in jail since 12.8.2020 and there is no likelihood of the trial/appeal to be heard at an early date or in near future in the wake of heavy pendency of cases in the court.
Learned counsel for the appellant has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-
"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."
Learned counsel for the appellant has placed further reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-
"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."
Learned A.G.A. and learned counsel for opposite party no.2 have opposed the prayer for bail.
Considering the arguments advanced by the learned counsel for the parties and going through the record, it is evident that initially when the incident was reported by the informant to the police on 16.08.2019, the police reached on the spot and also conducted the inquest in the presence of the informant, but no such allegations were levelled by the informant. It is also evident that no anti mortem injury of strangulation has been found in the post mortem report.
In view of above facts and discussions, I find that the court below has not considered the case in the correct perspective and committed error by rejecting the bail application of the appellant-applicant vide impugned order dated 09.4.2021 and the same is liable to be set aside.
After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, and the observation given by the Hon'ble Apex Court in the case of Kamal Vs. State of Haryana (supra) and Takht Singh Vs. State of Madhya Pradesh (supra) and mandate of Article 21 of the Constitution of India and law laid down in the case of Dataram Singh vs. State of UP and another, (2018) 2 SCC 22, the unlikelihood of early hearing and conclusion of trial/appeal, this Court is of the view that the appellant may be enlarged on bail and the order of the court below may be set aside and reversed.
Accordingly, the appeal stands allowed. The impugned judgment and order dated 09.4.2021 passed by Special Judge SC/ST Act/ Additional Sessions Judge, Court No. 2, Unnao in Bail Application No. 848 of 2021, arising out of S.S.T. No. 610 of 2020, Case Crime No. 305 of 2019, under Sections 147, 302, 201 I.P.C. and Section 3(2) 5 of SC/ST Act, P.S. Fatehpur Chaurasi, District Unnao is hereby set aside and reversed.
Let the appellant- Prem Shankar Nishad convicted and sentenced in S.S.T. No. 610 of 2020, Case Crime No. 305 of 2019, under Sections 147, 302, 201 I.P.C. and Section 3(2) 5 of SC/ST Act, P.S. Fatehpur Chaurasi, District Unnao, be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The appellant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The appellant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(iii) The appellant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
(iv) The appellant shall cooperate in the trial sincerely without seeking any adjournment.
(v) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.
On acceptance of bail bond and personal bond, the lower court concerned shall transmit the photostat copies thereof to this Court for being kept on the record.
The trial court is directed to expedite the trial of the aforesaid case and conclude the same expeditiously without granting any unnecessary adjournment to either of the parties.
The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of the 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 :- 17.8.2021 SP