1
In Chamber
Judgement reserved on 25.3.2021.
Delivered on 07.4.2021.
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10462 of 2021 Applicant :- Sandeep Kumar And 3 Others Opposite Party :- State of U.P.
Counsel for Applicant :- Satyendra Kumar Mishra Counsel for Opposite Party :- G.A.,Shams Uz Zaman
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Satyendra Kumar Mishra, learned counsel for the applicant, learned A.G.A. and perused the record.
2. By means of this application the applicants Sandeep Kumar, Sahdev, Ajeet and Lomash have approached this Court to enlarge them on bail in Case Crime No.73 of 2020 under Sections 147, 148, 302 and 307 I.P.C., Police Station-Ramala, District-Baghpat after rejection of their bail application vide order dated 21.12.2020 passed by Sessions Judge, Baghpat.
3. Learned counsel for the applicants submitted that applicants were named accused in above referred F.I.R., which was lodged on 04.6.2020, after a period of 3 days as the alleged occurrence took place on 01.6.2020. It was alleged by the father of the deceased that on 01.6.2020 due to an incident occurred a day before on 31.5.2020, all the seven named accused along with 15 to 20 unknown persons, with the object to cause death of his son Sachin and his friends namely Rachit, Nishant and Rajbeer assaulted them with lathi, stick, iron rod and balkatti which caused death of his son Rachit and his friend Sachin, whereas Nishant and Rajbeer ran away. Occurrence was witnessed by Dharmendra and Rajendra. Due to death of his son, informant and his family members were in shock which caused delay in lodging the F.I.R. It was submitted by the learned counsel that there is a cross F.I.R. also which was lodged promptly on 01.6.2020, against 9 named and 1 unknown person of complainant side, wherein a boy named Shekhar died due to fire arm injury. Learned counsel also submitted that actually two of the assailants were caught by mob when they were trying to run away from the place of occurrence and they were beaten until death and a false case was lodged against them of causing death of the said two assailants.
4. It was pointed out that the cause of death of Rachit was due to shock and haemorrhage as a result of ante mortem injuries, which are as follows:
"(1) Multiple lacerated wound all over the leg in no all bone deep, lagent 9 X 4 over the left paritpresent region, with under fractured bone seen lacerated wound of size 2 cm X 1 cm bone deep over left frontal third 1 X 3 cm over left temppartial region, 4th 2 x 3 cm over the left occiptal bone, with under lying fracture or light tempocital bone.
(2) Multiple contusion of size 30 cm X 3 cm to 20 cm X 3 cm all over the both of body, blue red in colour with.
(3) Contusion 11 cm X 7 cm over Rt. scapula blade with underlying Rt scapula bone. It asm of havel, which is verified and seen on deep dress.
(4) Contusion of size 4 cm X 7 cm on lateral aspect of Rt elbow.
(5) Contusion of size 8 X 2 cm in lateral aspect of lt. elbow."
5. That cause of death of Sachin was also due to shock and hemorrhage as a result of antemortem injuries which are as follows:
"(1) Lacerated wound, L shape, size 7 cm X 3 cm 4 cm X 3 cm X bone deep on the Rt thigoocipal.
(2) Lacerated would of size 6 cm X 2 cm over Rt. Occipital a X bone das, bood.
(3) Lacerated would of are 2 cm X 8 cm X Bone deep over Rt. Knupal region, blook.
(4) Lacerated wound of the 3 cm X 3 cm over the lateral part of left elbow, bone deep, exposed a strue Blar ment delocate of left elbow joint.
(5) Abrasion of size 3 X 2 cm over tatal aspec to Frt face 13 mc from Rt elbow joint.
(6) Abrasion of sig 3 X 3 cm are the lakm about of Rt. Present.
(7) Abrasion of 3cm X 3 cm are the lak present of Rt. Prh 6 cm from Rt. wrist joint and disal fro. Rt. Out bone deep tempt be.
(8) Bleeding from both the ear and nostrils.
9. illegible."
6. It was also pointed out that death of Shekhar (from accused side) was caused due to shock and hemorrhage as a result of ante-mortem injuries which are as follows:
"(1) Lacerated wound of size 3 cm X 2 cm on the Rt. Check bone diverted margin bleeding over the edge, bone deep, showing underlying structure & bone (Entry wound) with probing leading to anterior.
(2) Lacerated wound 8 cm X 8 cm over the Rt. Occipital bone with evented margin with top tissue bel medule comf out the wound from bood out of the wound and the mainputh and diskumetel pavema mentyes cheek bone a falt sicle with under destruction of stru point."
7. That injured from accused side have received injuries by hard and blunt objects, but are simple in nature.
8. It was further contended that statement of alleged eyewitnesses namely Dharmendra and Rajendra were recorded by the Investigating Officer on 24.6.2020, whereas occurrence took place on 01.6.2020, were planted as chance witnesses. These witnesses were neither present on the place of occurrence nor witnessed the occurrence. From the Panchayatnama of deceased Sachin, it is evident that a revolver was lying near his body, which clearly suggests that he was actually one of the aggressors.
9. It was also submitted that no specific role is assigned to any person, there is no motive for the applicants to commit crime. Delay in lodging F.I.R. remained unexplained. Applicants have no criminal history, they are in jail since 14.10.2020, they are entitled for bail.
10. Opposing the bail, learned A.G.A. has submitted that applicants along with other co-accused in furtherance of common object by an unlawful assembly committed offence, wherein two persons were killed due to shock and haemorrhage as a result of ante mortem grievous injuries caused on oxipital region, temporial region and on other parts also. Presence of applicants on the spot at the time of occurrence is established from the contents of the F.I.R. itself which is also corroborated by the statements of eye witnesses recorded during investigation under Section 161 Cr.P.C. It was further submitted that in cases such as in hand where each of the members of an unlawful assembly could be guilty of an offence committed even by any member of the said unlawful assembly in prosecution of the common object of that assembly. Specific role of each of the accused has no significance. Cross case, if any, would be dealt on its own merit and it was prayed that present bail application be rejected.
11. Law on bail is well settled that 'Bail is rule and jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused. It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, Criminal Appeal No.329 of 2021, decided on 18.3.2021 in this regard.
12. In the backdrop of above mentioned submissions on fact, on law and keeping in view the law on bail, prima-facie present is a case where applicants along with other co- accused armed with deadly weapons formed an unlawful assembly having an common object to cause death of the deceased and as such every member of such unlawful assembly is guilty of an offence committed in prosecution of its common object. There were multiple antemortem injuries including firearm injury on the deceased who died due to shock and haemorrhage as a result of ante mortem injuries. There are recovery of incriminating material from some of the accused also. There are serious allegations against the applicants of causing death of two persons. Issue of delay in lodging the F.I.R., issue of cross case and its effect if any, would be dealt during trial. In case of bail, there is likelihood that the applicants would try to influence the witnesses.
13. Considering all the aspects of the present case, no case of bail is made out, the present bail application is rejected.
Order Date :- 7.4.2021 SB