Allowed

Ashok Kumar @ Chhotu v. State of U.P.

Allahabad HC11 Feb 2022/650/2021

Case brief

AI extract

What is this about?

The High Court granted bail to the applicant in a murder and kidnapping case. The court relied on Supreme Court precedents regarding substantial time spent in custody and the fact that the case rests on circumstantial evidence. Bail was granted subject to strict conditions regarding conduct and court appearances.

What did the court decide?

Granted bail to the applicant subject to execution of a personal bond with two sureties and conditions regarding non-tampering with evidence, court appearance, and no criminal activity.

Ashok Kumar @ Chhotu Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 34

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 650 of 2021 Applicant :- Ashok Kumar @ Chhotu Opposite Party :- State of U.P. Counsel for Applicant :- Chhaya Tripathi,Shishir Pradhan Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard Sri Shishir Pradhan, learned counsel for the applicant and Sri Arvind Kumar Tripathi, learned A.G.A. for the State and perused the record.

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The applicant, Ashok Kumar @ Chhotu , has moved the present bail application seeking bail in Case Crime No. 66 of 2020, under Sections 364, 302, 201 and 404 I.P.C.,Police Station Maharajganj, District Raebareli.

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Learned counsel for the applicant submits that initially F.I.R. dated 13.03.2020 was lodged by the informant Vijay Kumar (uncle of the deceased) against the applicant bearing Case Crime No. 66 of 2020, under Sections 364 I.P.C.,Police Station Maharajganj, District Raebareli. He further submits that on 10.03.2020 the nephew of the informant Shalish Kumar on the day of Holi was playing colours in the village wearing a red shirt and pants of blue jeans, applicant along with the another man came with him from village Sothi on a motorcycle and they were seduced. Thereafter the whereabouts of the deceased Laulesh was not know.

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Learned counsel for the applicant further submits that the applicant has been falsely implicated in the present case. The F.I.R. against the applicant has been lodged after delay of three days. The occurrence has taken place on 10.3.2020. The F.I.R. was lodged on 13.03.2020 i.e. after three days of the said incident. It is a case of circumstantial evidence and last scene.

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Learned counsel for the applicant further submits that subsequently the dead body of the deceased Laulesh was recovered after 13 days and thereafter the Investigating Officer added Sections 302, 201 and 404 I.P.C.

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Learned counsel for the applicant further submits that the statement of the informant, uncle of the deceased, was recorded and he has repeated the same version of the F.I.R and other witnesses, namely, Ram Prasad Raidash, Shiv Prasad, Sonu, Kakak and Ratipal. They have repeated the same version that the deceased and applicant were roaming on

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Motorcycle, but thereafter they did not know about the whereabouts of the deceased.

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Learned counsel for the applicant further submits that the statement of father of the deceased was also recorded on 25.03.2020, wherein he stated that some villager of nearby person informed that his son was going on motorcycle with the applicant and Ram Kamal. The Investigating Officer recorded the statement of Raj Vijay Singh under Section 161 Cr.P.C., wherein he has stated that on 10.3.2020 the deceased and co-accused Ram Kamal and applicant were taking liquour in the agricultural filed and were abusing each other. Thereafter, he saw the dead body of the deceased on 23.03.2020. It was further submitted by learned counsel for the applicant that another witness Raj Kumar also in his statement recorded under Section 161 has stated that he has seen the deceased and co-accused Ram Kamal and applicant were taking liquour and abusing each other. Learned counsel for the applicant further submits that there is no other reliable evidence against the applicant.

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Learned counsel for the applicant further submits that it is a case of purely circumstantial evidence, because in the statement of Ran Vijay, he stated that thereafter the applicant also flew away from the spot from where they were taking liquour and he has not seen the deceased thereafter. It was also stated that dead body of the deceased was recovered from a Well, two kilometers far from the village of the deceased.

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Learned counsel for the applicant further submits that the postmortem of the deceased was conducted and the immediate cause of death is shock and haehorrhage, due to ante-mortem injury noted, however, viscera preserved for further finding if required.

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Learned counsel for the applicant further submits that the applicant has been falsely implicated in this case due to village rivalry and no independent eye-witness has seen the applicant involved in the alleged crime. It has also been pointed out that nothing incriminating has been recovered from the possession or pointing out of the applicant and no motive has been assigned by the complainant against the applicant for committing the alleged crime, as narrated in the F.I.R.

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Learned counsel for the applicant further submits that the coaccused, namely, Ram Kamal, who was allegedly seen with the applicant has been granted bail by this Court vide order dated 21.10.2021 passed in Bail No. 9149 of 2020. It has been further submitted that the case of the applicant is not on the worse footing than that of the co-accused, Ram

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Kamal, who has been granted bail, therefore, the applicant is also entitled to be released on bail by this Court sympathetically.

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It has further been argued by the learned counsel for the applicant that applicant is in jail since 26.03.2020 and he has already undergone a substantial period in imprisonment and in view of the para-2 of the judgment of Hon'ble Supreme Court in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463 , a prayer has been made to release the applicant on bail. Para-2 of the aforesaid judgment is being reproduced hereinbelow as under:-

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" 2. The appellants have been convicted under section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life . Against the said conviction and sentence their appeal to the High Court is pending. Before the High court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. there is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. the appeal is disposed of accordingly."

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Further, the learned counsel for the applicant has also placed reliance on para-2 of the judgment of Hon'ble Supreme Court in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 , which is being is reproduced herein below:-

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" 2. This is a case in which the appellant has been convicted u/s 304-B of the Indian Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Fridabad."

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Leaned counsel for the applicant further submitted that in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases the case of the applicant for grant of bail may be considered sympathetically, as the ratio of law is the same to be applicable in the

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case of applicant as he has already undergone a substantial period in imprisonment.

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Several other submissions regarding legality and illegality of allegations made in the F.I.R. have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 26.03.2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. has opposed the prayer for bail.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the allegations made in the F.I.R., the nature of evidence, in particular, the fact that the case rests on circumstantial evidence, the postmortem report of the deceased and the cause of death as alleged, the statements of complainant and other witness, the period of detention already undergone by the applicant, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and also on the consideration that the co-accused has been granted bail, and also considering the observation given by the Hon'ble Supreme Court in the cases of Takht Singh (supra) , Kamal (supra) and larger mandate of Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Ashok Kumar @ Chhotu , involved in Case Crime No. 66 of 2020, under Sections 364, 302, 201 and 404 I.P.C.,Police Station Maharajganj, District Raebareli, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(i) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(ii) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(v) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the 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 of the Indian Penal Code.

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(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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(vii) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(viii) 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.

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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

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Order Date :- 11.02.2022 Arvind

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Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.02.14 15:55:44 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Ashok Kumar @ Chhotu v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ashok Kumar @ Chhotu v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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