Allowed

Bhupendra Chaudahry @ Bholu v. State of U.P. and Another

Allahabad HC22 Sept 2021CRLA/1165/2021

Case brief

AI extract

What is this about?

In this bail appeal under the SC/ST Act, the Special Court allowed the appellant's plea, granting bail by setting aside the impugned rejection order, citing incompatibilities in medical reports and lack of independent witnesses regarding weapon recovery.

What did the court decide?

Appellant to be released on bail by furnishing personal bond and two reliable sureties with specific conditions regarding trial conduct and attendance.

Bhupendra Chaudahry @ Bholu Vs State of U.P. and Another — Bail and Remand | Allahabad HC (2021)

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Court No. - 67

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Case :- CRIMINAL APPEAL No. - 1165 of 2021

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Appellant :- Bhupendra Chaudahry @ Bholu Respondent :- State of U.P. and Another Counsel for Appellant :- Rajiv Lochan Shukla, ,Abhishek Narayan Pandey Counsel for Respondent :- G.A.,Vinod Singh

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Hon'ble Rahul Chaturvedi,J.

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Heard Shri Rajiv Lochan Shukla, learned counsel for the appellant; Shri Vinod Singh, learned counsel for the opposite party no.2 as well as Shri Ghanshyam Kumar, learned A.G.A for the State and perused the record.

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Counter affidavit filed by learned A.G.A. is taken on record. Learned counsel for the appellant does not want to file counter affidavit and wants to argue the case on merits.

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This criminal appeal under Section 14 A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short "S.C./S.T. Act") has been filed for setting-aside the bail rejection order dated 06.01.2021 passed by the Special Judge, SC/ST Act, Bulandshahr in Bail Application No.3631 of 2020 (State vs. Bhupendra Chaudhary @ Bholu) in Case Crime No.253 of 2020, under Sections 323, 307, 504/34 I.P.C. and Section 3(2)5 of SC/ST Act, Police Station-Ahmadgarh, District-Bulandshahr.

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Shri Rajiv Lochan Shukla, learned counsel for the appellant has drawn attention of the Court to the F.I.R. of the case indicating that one Rakesh has lodged the F.I.R. on 16.10.2020 for the incident said to have taken place on 15.10.2020 at 19.00 hours u/s 323, 307, 504, 34 I.P.C. and Section 3(2)(v) of SC/ST Act against four named accused persons including the applicant. From the text of the F.I.R. it is clear that the applicant is shown to be the star assailant for causing the firearm injury upon the injured Akash. Learned appellant's counsel has further submitted that interestingly no one has seen the incident. I have perused the statement u/s 161 Cr.P.C. of the injured, annexed as Annexure-4 to the petition, which indicates that initially the applicant has tried to intervene into the scuffle. Infuriated by this, the applicant went from the site and after taking the firearm has given a gun shot injury over his chest. Thus, it is clear that the role of firing has been attributed to the present applicant. The Court has occasion to peruse the injury report of the injured, which is annexed as Annexure-SA-2, which was

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prepared on 15.10.2020 at 08.00 am and the doctor has opined that there is firearm wound of entry of 0.8 cm x 0.8 cm, depth not probed on front of right side chest, upper heart margins inverted. Whereas, the Meerut Critical Care Hospital, Meerut in its supplementary report prepared on 16.10.2020 at 10.30 am, indicates that the injuries were reported by B.B.D. Rajkiya Hospital, Bulandshahr and the patient was operated in emergency and a ' bullet was removed from the right side of the chest'. This per se seems to be an anomalous situation. After having gone through the dimension of the injury mentioned in the injury report dated 15.10.2020 and the supplementary report dated 16.10.2020, indicates that there is no compatibility or parallel in between them. Besides this, the doctor has not indicated that there is any internal damage caused by the said firearm injury. Except this, there is no injury over his person. The appellant is languishing in jail since 18.10.2020.

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Shri Vinod Singh, learned counsel for the opposite party no.2 has vehemently opposed the prayer for bail by making a mention that it is clearly indicated in the supplementary report by the doctor that the injury sustained by the injured is grievous in nature and dangerous to life. He further submitted that there is recovery of weapon from the applicant enroute but there is no independent witness to this alleged recovery.

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It is undisputed that there is firearm injury sustained by the injured but fact remains that there is per se incompatibility in between both the injury reports, which gives a serious dent to the prosecution case. The submissions made by learned counsel for the appellant, prima facie, appear quite appealing and convincing for the purpose of bail only.

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Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, the period of detention already undergone by the appellant and also without expressing any opinion on merits of the case, I am of the view that the appellant has made out a case for bail.

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Let the appellant- Bhupendra Chaudahry @ Bholu , be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable 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:-

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(i) THE APPELLANT WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL.

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(ii) THE APPELLANT 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.

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(iii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.

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(iv) IN CASE, THE APPELLANT MISUSE 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 APPELLANT 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 IPC.

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(v) THE APPELLANT 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 APPELLANT 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. However, it is made clear that any wilful violation of above conditions by the appellant, shall have serious repercussion on his bail so granted by this court.

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Accordingly, the appeal succeeds and the same stands ALLOWED. Impugned order dated 06.01.2021 passed by the Special Judge, SC/ST Act, Bulandshahr, is hereby set aside.

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Order Date :- 22.9.2021 M. Kumar

Bhupendra Chaudahry @ Bholu v. State of U.P. and Another

Case brief

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Bhupendra Chaudahry @ Bholu v. State of U.P. and Another

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