Court No. - 71
Case :- CRIMINAL APPEAL No. - 3787 of 2019 Appellant :- Santosh Kumar @ Aasish Kumar Respondent :- State Of U.P. And 2 Ors.
Counsel for Appellant :- Pratap Kanchan Singh,Indresh Chandra Counsel for Respondent :- G.A.
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the appellant, learned A.G.A. for the State and perused the record.
This criminal appeal under Section 14-A(2) of Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed challenging the order dated 30.4.2019 passed by Special Judge, SC/ST Act/Addl. Sessions Judge, Court No. 2, Etawah in Bail Application no. 826 of 2019 in S.T. No. 64 of 2018 (Santosh Kumar @ Aasish Kumar Vs. State of U.P.), arising out of Case Crime no. 259 of 2018, under Sections 147, 148, 149, 302, 307 IPC, Section 3(2)(5), 3(2)(5Ka) of SC/ST Act and 7 Criminal Law Amendment Act, P.S. Jaswant Nagar, District- Etawah, seeking bail in the aforesaid sections.
In para- 3 of the counter affidavit filed on behalf of the State by Circle Officer (City), District- Auraiya, it has been stated that the notice regarding pendency of the present criminal appeal has been served upon opposite party no. 3, who is the husband of the victim on 30.5.2019, however despite service of notice, no one has appeared.
Learned counsel for the appellant has submitted that the appellant is wholly innocent and has been falsely implicated in the present case due to ulterior motive. Learned counsel for the appellant has next submitted that the appellant is not named in the FIR and as per the prosecution version on 14.6.2018 at about 11:40 p.m. there was exchange of firing between two groups Ex Gram Pradhan Santu Yadav and Gram Pradhan Madan Singh Yadav, due to which 8-10 persons suffered injuries and one of the injured Sushma Kathoria died. The first information report in respect of the said incident was lodged by S.H.O., P.S. Jaswant Nagar. Learned counsel for the appellant has next submitted that during the course of invsestigation, the statement of injured Pinky, Rekha, Sapna, Akhilesh, Uma Devi, Rambeti, Fulan, Anil Kumar and Ras Bihari have been recorded, however specific role of firing has not been assigned to any of the appellant. Learned counsel for the appellant has next submitted that no incriminating article has been recovered either from the possession of the appellant or at his pointing out.
Learned counsel for the appellant has next submitted that similarly placed co- accused Bhoore @ Anoop and Lauaa , who are named in the first information report, have already been granted bail by this Court in Criminal Appeal Nos. 5997 of 2018 and 6951 of 2018 vide orders dated 7.2.2019 and 13.3.2019 respectively. He has next submitted that the case of the appellant stands on the same footing as that of the other co-accused, who have already been granted bail. Lastly, it is submitted that appellant is in jail since 28.3.2019 and he has no criminal history to his credit and as such prima facie a case for bail is made out.
Per contra, learned A.G.A. has opposed the prayer for bail, but could not dispute the aforesaid facts and the fact that appellant is in jail since 28.3.2019 and similarly placed co-accused have already been granted bail and the case of the appellant stands on the same footing as that of the other co-accused, who have already been granted bail..
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, the appeal has substance.
The impugned order dated 30.4.2019 passed by Special Judge, SC/ST Act/Addl. Sessions Judge, Court No. 2, Etawah, is set-aside and the bail application of appellant stands allowed.
Let the appellant Santosh Kumar @ Aasish Kumar be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of court concerned, subject to 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 tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The appellant will not indulge in any unlawful activities.
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 appellant to prison.
Order Date :- 31.7.2019 KU