Court No. - 74
Case :- CRIMINAL APPEAL No. - 1924 of 2021 Appellant :- Vivek Tiwari Respondent :- State Of U.P.And Another Counsel for Appellant :- Rajesh Kumar Pandey,Renu Singh Counsel for Respondent :- G.A.,Deepak Dubey
Hon'ble Pradeep Kumar Srivastava,J.
Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Rajesh Kumar Pandey and Ms Renu Singh, learned counsel for the appellant, Sri Deepak Dubey, learned counsel for informant, learned AGA for the State and perused the record.
This appeal has been filed by appellant Vivek Tiwari against the impugned order dated 31.03.2021 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Court No.2, Etawah passed in Bail Application No.748 of 2021 arising out of Case Crime No.126 of 2021, under Sections 147, 323, 324, 504, 307, 506 I.P.C. and Section 3(1)(r) and 3(2)(v) of SC/ST Act, P.S. Kotwali, District-Etawah by which bail plea of appellant has been rejected. Aggrieved by the rejection order this appeal has been filed.
F.I.R. version is that on the date of incident, Anil Kumar Kori, who is the driver of Anuj Dixit was going by car through Punjabi Colony and ahead him one car Creta was being driven by Vinay Tiwari, who stopped his car in front of his house. The informant blew horn so that Vinay Tiwari may side his car and informant may go ahead but Vinay Tiwari did not do so and used the casteist words and started committing marpeet and also called his brothers, Pawan Tiwari, Vivek Tiwari and father Sheetal Prasad Tiwari who armed with lathi and danda came there along with two more boys who also used casteist words and committed marpeet. When his employer Anuj Dixit came for his rescue, marpeet was also committed with him. When the people of locality reached there, accused persons went into their house therefore the FIR was lodged.
Submission of learned counsel for the appellant is that the learned Special Judge S.C./S.T. Act did not consider the material on record and simply being influenced by the fact that injured person was of scheduled caste community he rejected the bail application of the appellant. Further submission is that no injury has been sustained by the injured which may give the category of attempt to murder and the whole story is an example of false implication and exaggeration. Learned Special Judge without considering the evidence on record illegally rejected the bail application, which has been challenged in this appeal. The order being illegal is liable to be set aside. Further submission is that appellant has no criminal history and there is also no possibility of his either fleeing away from the judicial process or tampering with the witnesses.
Learned counsel for informant and learned AGA have opposed the prayer and submitted that the medical report of the injured shows that the injured has sustained as many as five injuries, one of which is caused by sharp edged weapon on the neck of the injured. Offence committed by the accused persons is serious one and the learned Special Judge considering all the aspect of this case rightly rejected the bail application. There is no force in appeal and is liable to be dismissed.
In reply to the arguments by learned AGA and learned counsel for the informant, learned counsel for the appellant has submitted that in the F.I.R. only blunt object is said to have been used in the commission of offence and medical report shows that one injury has been caused by using sharp edged weapon, which cannot be relied upon. Moreover, he has submitted that in the statement of one of the witnesses, knife has been assigned to one Pawan Tiwari and the present appellant is Vivek Tiwari to whom no sharp edged weapon has been assigned and as such, his case is totally different from the case of Pawan Tiwari. He is in jail for last four months and considering the nature of offence, he deserves to be released on bail and the impugned order is liable to be set aside.
Considered the submission of both the sides, it appears that the whole incident has taken place on the very trifling issue which resulted in marpeet in which the driver has sustained injuries which are five in number. Submission is that four persons are said to have committed offence but injury sustained by the injured person is of not that kind which can establish that all the four persons must have committed marpeet by lathi-danda or by knife as alleged by one of the witnesses. This fact has been completely ignored by the learned Special Judge and he appears to have committed gross illegality in rejecting the bail application.
In view of above, I find that the impugned order is not sustainable under law and is liable to be set aside.
In the result, appeal is allowed. Impugned order dated 31.03.2021 passed by learned Special Judge, SC/ST (Prevention of Atrocities) Act, Court No.2, Etawah is set aside.
Let appellant-applicant Vivek Tiwari be released on bail in the aforesaid case crime on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant-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 applicant-appellant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant-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 applicant to prison.
Order Date :- 28.7.2021 Tamang