Allowed

Ram Dayal Rajbhar v. State of U.P. and Another

Allahabad HC29 Sept 2021CRLA/2092/2020

Case brief

AI extract

What is this about?

In a criminal appeal under the SC/ST Act concerning a murder case, the High Court observed that the trial was delayed and material evidence was inconclusive regarding the appellant's direct involvement. Finding reasonable doubt, the court allowed the appeal and granted bail with stringent conditions to ensure trial attendance and protect witnesses.

What did the court decide?

The appellant was released on bail with personal bond and two sureties; conditions imposed for trial attendance and witness protection; impugned order of 12.03.2020 quashed.

Ram Dayal Rajbhar 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. - 2092 of 2020

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Appellant :- Ram Dayal Rajbhar Respondent :- State of U.P. and Another Counsel for Appellant :- Ramesh Chandra Tiwari,Indra Kumar Chaturvedi(Senior Adv.) Counsel for Respondent :- G.A.,G.S. Chauhan

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Hon'ble Rahul Chaturvedi,J.

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Heard Sri I. K.Chaturvedi, learned Senior Advocate assisted by Sri Ramesh Chandra Tiwari, learned counsel for the appellant, Sri G.S. Chauhan, learned counsel for the opposite party no. 2, Sri S.N. Tiwari, learned A.G.A. and perused the record.

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Pleadings exchanged between the parties and the matter is ripe for final submission.

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At the out set Sri I. K. Chaturvedi fairly conceded that practically speaking that this is the second appeal u/s 14-A 2 of SC/ST Act. The earlier criminal Appeal no. 2429 of 2018 was rejected by Hon'ble Umesh Chandra Tripathi,J. on 23.01.2019 thereafter, the appellant again approach to the court of session for filing yet another second bail application no. 474 of 2020 and the said second bail application was rejected by learned Special Judge SC/ST (P.A.) Act/Additional Sessions Judge, Court No. 2, Ghazipur.

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Hence this appeal under aforesaid section of SC/ST Act by Ram Dayal Rajhbhar who his facing the prosecution in Case Crime No. 332 of 2017, u/s 302, 120-B, 504, 506 IPC and section 3(2)(v)(a) of SC/ST (P.A.) Act and 3/25 of Arms Act, P.S. Revatipur, District Ghazipur and he is languishing in jail since 31.10.2017 and the trial is progressive with the snail speed and only three witness have been examined so far.

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I have occasion to peruse the order passed by esteemed predecessors Hon'ble U. C. Tripathi,J. (as His lordship then was) and thereafter, the testimonies of witnesses during the trial.

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From the FIR it is clear that the present FIR was registered as case crime no. 332 of 2017, u/s 302, 120-B, 504, 506 IPC and section 3(2)(v)(a) of SC/ST (P.A.) Act on 20.10.2017 at 7:10 a.m. for the incident said to have taken place during intervening night of 19/20.10.2017 around 12.00-1.00 hours in the mid night. This FIR was registered against four named accused persons including the appellant by Smt. Premsheela Devi with the allegation that the informant's husband was having some heated altercation with Ram Dayal Rajbhar, the appellant, who is the Pradhan on 09.09.2017 with regard to the construction of some toilet. In continuation of that during the intervening night of 19/20.10.2017 they barged into the house and have eliminated Luv Kush Paswan (her husband by gun shot). Her husband was lying in one room of the hut whereas, she was lying in the another room. After hearing the noise of gun shot she rushed to the room and has seen that that the appellant was carrying a pistol whereas Ashok Rajbhar, Bali Ram Rajbhar, Chandan his accomplices were standing on the spot and his husband has sustained a gun shot injury over his head. After seeing this she started crying. On her screaming her

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neighborhood Vihay Shankar, Bahadur assembled on the place and then those accused persons after hurling filthy abuses and extending threat to the life, fled away from the site the dead body of the deceased was lying on the spot and she has lodged the FIR.

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After registering the FIR, postmortem of the body was conducted and was found that there is a fire arm wound of entry at left temporal side of the scull admeasuring size 0.5 cm in dimeter circular in shape, clean cut edge inverted and its corresponding wound of exit at 2.5 cm in dimeter rounded in shape everted margin 3 cm from right eye on the left side of temporal bone indicative of the fact that there was singular gun shot fire upon the deceased.

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Learned counsel for the appellant has drawn the attention of the Court to the site plan of the place of occurrence during investigation, does not indicates that from which side the assailants entered into the house and from which side they rushed out. Admittedly, there are two different rooms in the same hut, in one room the deceased was lying whereas another room the informant was said to have been lying.

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In the statement of Smt. Premsheela Devi recorded u/s 161 Cr.P.C. that after hearing the noise of gun shot all of a sudden, she got up and has seen in the light of the torch that Ram Dayal Rajbhar was standing with a pistol along with his accomplishes after committing the offence and when all the neighborhood assembled over the site then, all the four persons fled away from the place of occurrence after extending threats and abuses.

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Much emphasis has been laid by Sri I. K. Chaturvedi, Senior Advocate to the testimony of Smt. Premsheela Devi as P.W.-1 who in her cross examination clearly indicated that "ghatna wale din diwali ka din tha. Diwali ka deepak jalaya gaya tha, jo bujh chuka tha. Bijli kati thi. Us samay bijli nahi thi. Mere ghar bijli ka connection hai."

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Thus, it is clear that in the diwali night there was a amavasya (no moon light). Coupled with the fact that the diwali lamps were extinguished and the electricity supply was disrupted at the time of occurrence, she has not seen that out of these four persons, who have committed this offence. What she has seen that the appellant was carrying the pistol and from this, she inferred that it is appellant who might have committed that offence. It is further argued by the learned counsel for the appellant that it is highly improbable and unnatural that after committing the offence the assailants would remain standing at the place of occurrence. It is against the human instinct. Every offender after committing the offence, tried to fled away from the site at the first instance and no body would going to wait to create an ocular testimony against himself. There is no other confidence generating material on record to establish that it is the appellant who is involved in the commission of the present offence. The alleged heated altercation took place about 2-3 months back and to connect that heated altercation with the present offence is too farfetched. The appellant in jail since October 2017.

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Learned A.G.A. and Sri G.S. Chauhan learned counsel for the opposite party no. 2 has vehemently oppose the present appeal by making a mention that after the rejection of first bail application on 23.01.2019, there is no new material on record so as to persuade this court to grant bail but Sri G.S. Chauhan is unable to point out any seepage or loopholes in

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the submissions advanced by learned counsel for the appellant. Moreover, it is Sri Chauhan himself has admitted that only three witnesses have been examined so far and in the event the appellant is released on bail it is every likelihood that the appellant may tried to win over the remaining witnesses and create hurdles in the smooth progress of the trial.

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After hearing the rival submissions, it is true that the appellant is behind the bar since October 2017 and there is no possibility of the trial to be concluded in the near future, coupled with the fact that there is no ocular testimony of the incident. The informant after hearing the noise of the gun shot has seen the incident and on the basis of pistol like article in the hand of the appellant, she inferred that it is appellant, who has committed this offence. Connecting the same with the incident dated 09.09.2017, the counsel for the applicant submitted that no prudent person after committing the offence would remain present and would try to create evidence against himself. Admittedly there was a pitch dark in the room and the only torch is the source of the light and if all the materials mentioned above are taken as it is, it cannot said with certainty that is the only appellant who has committed this offence.

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Moreover, he is in jail since last more than four years. To my mind assessing the material on record applicant deserves to be bailed out at this stage.

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Let the appellant Ram Dayal Rajbhar , 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:-

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(i) THE APPELLANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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. (ii) THE APPELLANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPELLANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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However, it is made clear that the learned trial judge shall not be influenced by the observation made above while allowing the present appeal and shall apply its own independent judicial mind while assessing the material on record in its entirety and shall make all necessary endeavor to try the present S.S.T. No. 10 of 2018 on the top most priority and conclude the same within a period of next one year positively. It is further made clear that in the event the appellant after released on bail, tries to hobnob or win over or terrorize the witnesses. The learned Sessions Judge as its fullest liberty to cancel the bail application at his own hand after recording the reasons/satisfaction for doing so.

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With the observation the present stands allowed and the impugned order dated 12.03.2020 passed by learned Special Judge, SC/ST (P.A.) Act/Additional Sessions Judge, Court No. 2, Ghazipur, is hereby quashed.

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Order Date :- 29.9.2021 Nisha

Ram Dayal Rajbhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Ram Dayal Rajbhar v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

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