Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14644 of 2021 Applicant :- Smt. Sondevi Opposite Party :- State of U.P.
Counsel for Applicant :- Ronak Chaturvedi Counsel for Opposite Party :- G.A.,Swati Agrawal Srivastava
Hon'ble Samit Gopal,J.
Matter taken up through Video Conferencing.
Heard Sri Ronak Chaturvedi learned counsel for the applicant, Mrs. Swati Agrawal Srivastava learned counsel for first informant, Sri Virendra Kumar Maurya, learned AGA 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 Smt. Sondevi , seeking enlargement on bail during trial in connection with Case Crime No. 246 of 2020, under Section(s) 147, 148, 149, 302, 307, 323, 324, 504, 506,34 I.P.C. registered at P.S. Surir, District Mathura.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that although in the first information report as many as six persons including applicant have been arrayed as accused, in which co- accused Gulveer has been stated to be armed with licensed gun, Balram and Komal have been stated to be armed with country made pistols whereas as far as the other three accused persons are concerned, common and general role has been assigned to them of being armed with lathi and farsa. While placing the postmortem reports of two deceased namely Ashok @ Gulli and Smt. Geeta Devi which are annexed as Annexure Nos.4 and 5 respectively, it is argued that the doctor, who conducted the postmortem has opined that cause of death of the deceased persons are due to fire arm injuries. Learned counsel has further placed before the Court the medical examination report of three injured persons namely Rajesh, Mukesh and Poonam, copies of which have been annexed as Annexure No.6 and has argued that although in the recital of the first information report there is a reference that Rajesh and Mukesh who is first informant have received injures but there is no disclosure of the fact that Poonam has also received injury, however she was medically examined. Learned counsel has proceeded to argue that in so far as Rajesh is concerned, he is alleged to have received one lacerated wound along with one swelling and doctor has opined that injury no.1 is simple in nature, but injury no.2 was kept under observation and X-ray was advised of the forearm. While placing the X-ray report of Rajesh which is annexed as Annexure No.7, learned counsel has argued that after X-ray examination, the doctor has found no abnormality and as such injury no.2 can also be very safely termed as simple in nature. Further learned counsel has placed the injury report of Mukesh and argued that the doctor has noted lacerated wound with swelling, which was also kept under observation and X-ray of the head was advised which was also conducted and the copy of the X-ray is annexed as Annexure no.7 at page 78 and even there doctor did not find any abnormality and as such injury can also be safely considered to be simple in nature. Further learned counsel has placed injury report of Poonam and argued that the doctor has noted one incised wound and body pain. It is argued that doctor has given opinion that although injuries are caused by hard and blunt object, but injury no.1 is caused by hard and sharp object, however doctor has not given any opinion regarding the nature of injury. It is argued that even though the injury no.1 is between the right index finger and middle finger of the hand and as such is not on vital part. It is further argued that independent witnesses namely Hemendra and Hariom were interrogated, whose statements are annexed as Annexure No.14 to the affidavit in which they have stated that Gulveer fired with his licenced gun as a result of which Ashok @ Gulli and his wife Geeta Devi received injuries and fell down, after which his daughter, Balram and Komal fired from country made pistols and the applicant Smt. Sondevi was armed with a farsa. In the said two statements for the first time applicant has been stated to be armed with farsa whereas in the first information report common and general role of three above accused persons were stated to be armed with lathi and farsa. Learned counsel has further placed before the Court the site plan of the place of occurrence which is annexed as Annexure No.8 to the affidavit and has proceeded to argue that the place of occurrence is in front of the house of the accused applicant which goes to show that the first informant and the other persons had attacked the house and as such the incident took place. Learned counsel has placed before the Court an application moved from the side of the accused persons which is dated 4.11.2020 filed under section 156(3) Cr.P.C. by Vijay Kumar against Mukesh, Rajesh and Hariom @ Hari for offence under sections 147, 148, 149, 307, 452 IPC stating about an incident said to have taken place on 6.10.2020 at about 7:30 a.m. which is the same date and time of the present incident, in which the applicant is being prosecuted. It is argued that the said version, which is cross version has found favour with the court below and vide order dated 30.1.2021, copy of which annexed as Annexure No.17 the court concerned has treated the said application as a complaint and has proceeded in the matter for recording the statement under section 200 Cr.P.C. for inquiry. It is argued that as such the present case has cross version and both versions need to be tested at a later stage, as to who were the aggressors. It is argued that the first informant with malafide intention involved the entire family members of the applicant. It is further argued that the applicant is a lady and is also entitled to the benefit of section 437 Cr.P.C. It is argued that the applicant is neither a previous convict nor involved in any criminal case till date as stated in para 42 of the affidavit and is in jail since 6.10.2020.
Per contra, learned counsel for the first informant and learned AGA vehemently opposed the prayer for bail and argued that the present case is a case of double murder. There are three injured witnesses to the incident. There are independent witnesses also to support the prosecution case. It is argued that the role assigned to the applicant is that of participating in the incident by arming herself with a farsa. The postmortem of Ashok has been placed to demonstrate that the injury no.3 as noted by the doctor therein is that on the left side all the ribs are fractured. It is argued that the same cannot in any manner be caused by fire arm and use of farsa cannot be ruled out. It is further argued while placing the inquest of the deceased Ashok, that the person who conducted the inquest found that the thumb and its adjacent finger of the right toe and its nails were injured. It is argued that the said injury is surprisingly missing in the postmortem examination report. It is argued that the applicant has been named in the first informant report and has been assigned the role of having a Farsa.
After having heard learned counsel for the parties and perusing the record, it is evident that the cause of death as opined by the doctor, who conducted the postmortem examination of both the deceased persons being due to ante mortem fire arm injuries, are not being disputed and further the fact that the applicant is a lady and has no criminal history as averred in para 42 of the affidavit, is also not being disputed. The role assigned to the applicant as per first information report is initially of being present along with other co-accused persons but a general role to three of the accused-persons has been stated to be armed with lathi and farsa. The role assigned to her is of being armed with farsa. The injuries of the injured persons have been stated to be simple in nature. The death of both the deceased are due to fire arm injuries.
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- Smt. Sondevi 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 :- 26.5.2021 Tamang (Samit Gopal,J.)