Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31278 of 2021 Applicant :- Rajesh Diwakar @ Pappu Opposite Party :- State of U.P.
Counsel for Applicant :- Ram Sumer Chaudhary Counsel for Opposite Party :- G.A.,Shiv Prakash Chaudhary
Hon'ble Samit Gopal,J.
Heard Sri Ram Sumer Chaudhary, learned counsel for the applicant, Shiv Prakash Chaudhary, 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- Rajesh Diwakar @ Pappu, seeking enlargement on bail during trial in connection with Case Crime No.189 of 2021, under Sections 147, 148, 323, 504, 506, 308, 304 I.P.C., registered at Police Station Sarai Akil, District Kaushambi.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is further argued that the present case has a cross version in which both the sides have received injuries. The deceased Ramesh Kumar has received two stitched wounds, one abrasion on his body and the cause of death has been opined due to coma as a result of ante-mortem head injury. Both the stitched injuries were on the skull and were near eyebrow. It is further argued that Smt. Reeta Devi and Manish Kumar Diwakar are the alleged injured persons from the side of the prosecution. The present case has a cross version in which FIR was lodged from the side of the applicant by Sanjay Diwakar in which Laxmi Diwakar, Smt. Anita Devi, Smt. Kamla, Rajesh Diwakar (the present applicant) and Rahul Diwakar received injuries. It is further argued that Laxmi Diwakar was reported to have had six injuries and she was referred for C.T of brain wherein there was fracture on right temporal bone and there was fracture on right zygomatic arch and swelling on left pre-parietal soft tissue. The injured Kamla has received five injuries and as per X-Ray report she had suffered fracture of head on left index metacarpal bone. The injured Rajesh Diwakar (the present applicant) has received five injuries and as per X- Ray examination fracture of left ulna bone is seen. The injured Rahul Diwakar has received six injuries and there was a fracture on tip of distal phalanx of right index finger as per X-Ray examination, as such the present case is a case of injuries on both the sides. In so far as the injury received by injured Manish Kumar Diwakar from the side of the first informant is concerned, although he has received three injuries but the doctor has opined them to be simple in nature. It is further argued that Smt. Reeta Devi though has received four injuries but for the injury no.1, she was referred for X-Ray examination wherein the doctor did not find any bony fracture on the skull. The present case is a case in which both the sides have received injuries and the applicant and persons of his side have received serious injuries including fractures. The applicant is in jail since 21.05.2021.
Per contra learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that there was dispute between two real brothers. The deceased is the younger brother of the applicant. The applicant and his family members launched an attack on the deceased and his family members on the reason that there was a wall being constructed from the side of first informant which was being objected from the side of the applicant, as such involvement of the applicant is there.
After hearing the counsel for the parties and perusing the record, it is apparent that the present case has a cross version and both the sides have received injuries. There are serious injuries from the side of the applicant and even the applicant has received injuries and there are fractures from the side of the applicant.
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-Rajesh Diwakar @ Pappu, 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.
(Samit Gopal, J.) Order Date :- 23.9.2021 Gaurav