Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31738 of 2021 Applicant :- Saurabh @ Sorab Opposite Party :- State of U.P.
Counsel for Applicant :- Arvind Agrawal Counsel for Opposite Party :- G.A.,Pradeep Kumar Yadav
Hon'ble Samit Gopal,J.
Heard Sri Arvind Agrawal, learned counsel for the applicant, Sri Pradeep Kumar Yadav, learned counsel for the first informant and Sri Sanjay Singh, learned A.G.A. 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- Saurabh @ Sorab, seeking enlargement on bail during trial in connection with Case Crime No. 262 of 2021, under Sections 452, 354(D), 323, 336, 304 I.P.C., registered at Police Station Shikohabad, District Firozabad.
Learned counsel for the applicant argued that the implication of the applicant in the present case is false and co-accused Salim has been assigned the specific role of entering inside the house of the first informant, assaulting his sisters and also doing immoral acts with one of his sisters and assaulting Kumari Bitto, a four year old child with a brick due to which she received seven stitches on her head after which the applicant, who is nephew of Salim and Smt. Sonam wife of Salim were also called, who also resorted to marpeet. It is argued that except for Kumari Bitto, no other person has received any other injury. Kumari Bitto was medically examined at the first instance and the doctor has found single lacerated wound on her head. Subsequently, on 24.04.2021 she died because of the said injury on her head and the doctor conducting the postmortem examination found a stitched wound and the cause of death was opined as coma due to antemortem head injury.
It is argued that the two girls who are the alleged victims, in their statements recorded under Section 161 Cr.P.C. have assigned the entire role of enraging the modesty, tearing of clothes and even assault on the deceased with a brick to co- accused Salim. The applicant along with Smt. Sonam is also stated to have indulged in marpeet. It is argued that there is no one other than Kumari Bitto who has received injury. Subsequently, the statement of one of the victims was recorded under Section 164 Cr.P.C., wherein, she has named Salim, Saurabh (the applicant), Mahima and Sonu as the persons, who had entered inside the house and as such, the said version has a difference as Mahima and Sonu have been introduced for the first time therein whereas Smt. Sonam has been exonerated in the said statement. It is argued that the role of the applicant is distinguishable with that of co-accused Salim, who has been assigned the role of assault, enraging the modesty, tearing of clothes and even assault on the deceased with a brick. The implication of the applicant is only due to the reason that he happens to be the nephew of co-accused Salim. It has also been pointed out that the applicant is not having any criminal history as stated in para 19 of the affidavit and he is in jail since 25.04.2021.
Per contra, learned counsel for the first informant and learned A.G.A. opposed the prayer for bail and argued that the applicant along with Smt. Sonam reached the place of occurrence on the call of Salim and had resorted to marpeet which has been stated in the first information report and in the statements of the two girls recorded under Section 161 Cr.P.C. and also in the statement recorded under Section 164 Cr.P.C. It is argued that as such, there is an active participation of the applicant in the present case. The role of co-accused Salim as has been stated by the prosecution witnesses has not been disputed by learned counsels opposing the prayer for bail and the fact that except for Kumari Bitto, there is no other injured person is also not controverted.
After having heard the learned counsel for the parties and perusing the record, it is apparent that there is no other person injured in the present case except for Kumari Bitto, who subsequently succumbed to the injuries. She has received one injury on her body for which there is specific recital of being caused by a brick by co-accused Salim.
The case of the applicant is distinguishable with that of co-accused Salim.
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- Saurabh @ Sorab, 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.
Order Date :- 22.9.2021 AS Rathore (Samit Gopal,J.)