Allowed

Anil Kumar Pathak v. State of U.P.

Allahabad HC11 Apr 2022BAIL/3515/2022

Case brief

AI extract

What is this about?

This judgment disposes of four connected criminal bail applications filed by Anil Kumar Pathak, Ashok Pathak, Prakash Pathak, and Prashant Pathak. The Court allowed the bail applications, granting enlargement on bail to all four applicants after hearing counsels for the applicants, the State, and the first informant.

What did the court decide?

Release of Anil Kumar Pathak, Ashok Pathak, Prakash Pathak, and Prashant Pathak on bail on furnishing a personal bond and two sureties each.

Anil Kumar Pathak Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 66

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1. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3515 of 2022

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Applicant :- Anil Kumar Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Aushim Luthra,Atharva Dixit Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava

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2. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2082 of 2022

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Applicant :- Ashok Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Aushim Luthra,Atharva Dixit Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava

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3. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1038 of 2022

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Applicant :- Prakash Pathak @ Tarun Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Aushim Luthra,Atharva Dixit,Sr. Advocate

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Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava

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4. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1367 of 2022

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Applicant :- Prashant Pathak Opposite Party :- State of U.P. Counsel for Applicant :- Aushim Luthra,Atharva Dixit,Sr. Advocate Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava Hon'ble Rajeev Misra,J.

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Heard Mr. Manish Tewary, learned Senior Counsel assisted by Mr. Aushim Luthra and Mr. Atharva Dixit, the learned counsel for applicants-Anil Kumar Pathak, Ashok Pathak, Prakash Pathak @ Tarun Pathak and Prashant Pathak in above mentioned respective Criminal Misc. Bail Applications, the learned A.G.A. for State and Amit Kumar Srivastava, the learned counsel for first informant in all bail applications.

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2. Perused the Court.

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These applications for bail have been filed by applicants-Anil Kumar Pathak, Ashok Pathak, Prakash Pathak @ Tarun Pathak and Prashant Pathak, seeking their enlargement on bail in Case Crime No. 92 of 2021 under Sections 147, 148, 149, 323, 504, 506, 302 , 120B, 392, 412 and 34 I.P.C., Police Station-Lalapur, District-Prayagraj, during pendency of trial.

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Criminal Misc. Bail Application No.3515 of 2022 (Anil Kumar Pathak Vs. State of U.P.) came up for orders on 14.03.2022 and this Court passed following order:

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"Heard Mr. Manish Tiwary, learned senior counsel assisted by Mr.Atharva Dixit and Mr. Aushim Luthra, learned counsel for applicant, learned A.G.A. for State and Mr. Amit Kumar Srivastava, learned counsel for first informant.

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At the very outset, learned A.G.A. contends that Criminal Misc. Bail Application No. 1367 of 2022 (Prashant Pathak Vs. State of U.P.), Criminal Misc. Bail Application No. 1038 of 2022 Prakash Pathak alias Tarun Pathak and Criminal Misc. Bail Application No. 2082 of 2022 (Ashok Pathak Vs. State of U.P.) filed by co-accused are already pending before this Court.

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In view of above, connect aforementioned bail applications along with this application for bail.

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Matter shall re-appear as fresh on 24.3.2022 along with connected matter.

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Order Date :- 14.3.2022"

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Pursuant to above order dated 14.03.2022, all the bail applications arising out of same case crime number stood connected and have now been listed together.

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Since all the afore-mentioned bail applications arise out of same case crime number, therefore, same have been heard together and are now being disposed of finally by this Court by a common order.

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It transpires from record that in respect of an incident, which is alleged to have occurred on 21.08.2021, a prompt F.I.R. dated

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21.08.2021 was lodged by first informant Sri Mukesh Kumar

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Tripathi and was registered as Case Crime No. 0092 of 2021 under Sections 147, 148, 149, 323, 504, 506, 302 , 120B and 34 I.P.C., Police Station-Lalapur, District-Prayagraj. In the aforesaid F.I.R., six persons, namely, Prakash Pathak, Prashant Pathak, Ashok Pathak, Anil Pathak (applicants herein) Vikash Pathak and Arun Pathak have been arraigned as named accused

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In brief, according to the prosecution story as unfolded in the F.I.R. it is alleged that an occurrence took place at around 9.30 AM on 21.08.2021 in which seven persons namely Rakesh Pal, Jag Jeevan Pal, Harikesh Pal, Munna Lal Pal, Shashikant Dwivedi, Surya Nath Tripathi and Mukesh Kumar Tripathi sustained injuries. Thereafter, in continuation of the same, another incident is alleged to have occurred on the same day in which Anil Kumar Tiwari sustained gun shot injury. The injured was taken to the Hospital. Ultimately, the injured-Anil Kumar Tiwari succumbed to the injury sustained by him.

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After registration of afore-mentioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. Injured were medically examined. Their Medico Legal Reports are on record as Annexure 9 to the affidavit, collectively. As per above, following persons sustained injuries:-

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1. Rakes Pal

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i. Complain of pain, right side back of chest, but no visual fresh external injury seen.

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ii. Contusion size 7 x 6 cm over posterior aspect of left elbow joint, radish in clcour, Advice X-ray let elbow.

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iii. Contusion size 7 x 4 cm. over anterior aspect of left forearm, 5 cm above from left writst joint, radish in colour.

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iv. Contusion size 4x 5 cm. over lateral aspect of right leg, 22cm above from lateral mallolu8es of right ankle joint radish in colour.

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2. Jagjeevan Pal

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i. Contusion size 7 x 3 cm over right lower margin of left scapular reddish in colour.

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ii. Contusion size 5 x 4 cm. seen over medial surface of left hard just below left wrist joint, reddish in colour. posterior aspect of right elbow aspect of left forearm, 5 cm above from left wrist joint, radish in colour.

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iii. Contusion size 9x 7 cm. over poserior aspect of right elbow joint reddish in colour.

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iv. Contusion size 7 cm x 5cm over posterior aspect of right thigh, 12 cm above from posterior aspect of right knee joint, reddish in colour.

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3. Harikesh Pal

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lacerated contusion size 3 cm. x 2 cm over right side of occipital region of skull with laceration size 1cm x 0.5 cm into muscle deep within contusion area, reddish in colour, 12 cm above from C-7, Vertebral.

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ii. Contusion size 11 x 10cm over dor4sal aspect of left wrist joint with hard need X-ray-Ap-Lat, reddish in colour.

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iii. Contusion size 15 cm x 12cm over right knee joint, Adv. X- ray knee joint Ap-Lat.

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iv. Contusion size 11 cm x 10cm over posterior medial aspect of of right leg, 3 below from posterior aspect of right knee reddish in colour.

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v. Posterior aspect of right knee reddish in colour.

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vi. Multiple contusion size 18 X7 cm over posterior aspect of right shoulder with arm reddish in colour.

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4. Munna Lal Pal

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i. Contusion size 7 x 6 cm over left lower eyelid and zygomatic procen of face reddish in colour.

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ii. Contusion size 11 x 4 cm. seen over lower margin of right scapula radish in colour.

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iii. Swelling and contusion size 14x 12 cm. over left side of knee joint Red in colour X-ray left knee-Ap-Lat.

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iv. Abrasion size 8 cm x 3cm over medial aspect of right thigh, 12 cm above right knee joint red in colour.

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5. Sri Shashi Kant Dwivedi

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i M.I-Black Mole right side neck at upper chest.

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ii. Part X-rayed-Xray Left elbow AP-Al, Left ankle joint APAL

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iii. No bony injury is seen.

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6. Rakesh Pal

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i M.I-Black Mole over back of chest 8 cm below from C-r vertible.

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ii. Part X-rayed-Xray Left elbow AP-Al, Left Elbow joint.

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iii. No bony injury is seen.

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7. Harikesh Pal

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i M.I-Black Mole over left side face over from medial. chest 8 cm below from C-r vertible.

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ii. Part X-rayed-X-ray right knee and left wrist with hand.

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iii. Fracture 4th metacarpal bone of ring finger of left hand seen.

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iv. Fracture right Potella bone of right knee joint seen.

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Subsequent to above, Inquest (panchayatnama) of the body of deceased was conducted on the same day i.e. 21.08.2021. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was characterised as homicidal. Thereafter, the post-mortem of the body of the deceased was conducted. In the opinion of autopsy surgeon, cause of death of deceased was haemorrhage, shock, comma, as a result of fire arm injury. Autopsy Surgeon found following ante-mortem injuris on the body of deceased:-

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i. Fire arm entry wound of size 0.5 cm x 0.5 cm on left side of parietal region of skull and blackening tattooing, singing of hair present on curt section parietal bone fractured and brain metallic lacerated two part metallic bullet size 1.5 cm, 0.7 cm. and 1-2 cm into 0.7 cm recovered from brain cavity.

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ii. Fire arm entry wound of size 0.5 cm x 0.5 cm on right side neck and 5cm above right clavicle bone. On cut section one metallic bullet recovered from neck cavity, a tattooing blackening x single present brain cavity.

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iii. Fire arm entry wound of size 2.5 cm x 2 cm on front x 14 cm below the right nipple, tattooing, blackening and singing of hair present, on cut section 2 sending part and one bullet recovered of size 2cm x 1.5 cm recovered from vertebral column.

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During course of investigation, Investigating Officer examined as many as 43 witnesses including the first informant, witnesses of inquest, formal witnesses, witnesses of fact and the following injured witnesses:

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i. First informant, Mukesh Kumar Tripathi.

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ii. Injured Rakesh Pal

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iii. Injured Jag Jeevan Pal

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iv. Injured Harikesh Pal

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v Injured, Munna Lal Pal,

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vi. Injured, Shashikant Dwivedi,

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vii. Injured, Surya Nath Tripathi.

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vii. Injured, Mukesh Kumar Tripathi

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On the basis of above and other material collected by Investigating Officer during course of investigation, he opined to submit a charge-sheet. Ultimately, he submitted the charge sheet dated 01.11.2021 whereby all the named accused have been charge-sheeted under sections 147, 148, 149, 323, 504, 506, 302 , 120B, 392, 412 and 34 I.P.C.

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13.. At the very outset, Mr. Manish Tewary, learned senior counsel for applicants contends that co-accused Vikash Pathak has already been enlarged on bail by this Court vide order dated 24.02.2022 passed in Criminal Misc. Bail Application No.1806 of 2022 (Vikash Pathak Vs. State of U.P.). For ready reference, order dated 24.02.2022 is reproduced herein under:-

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" Heard Shri Manish Tewary, learned Senior Counsel assisted by Shri Atharva Dixit, learned counsel for the applicant, Shri Amit Kumar Srivastava, learned counsel for the informant as well as the learned A.G.A for the State and perused the record.

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It is submitted by the learned Senior Counsel appeairng for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. No prima facie case is made out against the applicant. Referring to the contents of F.I.R. it is further submitted in this case F.I.R. contains two parts. If first part of the F.I.R. is taken into consideration, parties retreated from the place of occurrence. No incident to attract the offence under Section 302 IPC took place at that place. Second part of the incident, as disclosed in the F.I.R., is related to causing death of the deceased. Referring to the facts mentioned in the F.I.R. in this respect it is further submitted that main role for causing firearm injury is assigned to co-accused Arun Pathak. Referring to statement of witnesses recorded during investigation it is further submitted that after post mortem prosecution added one more accused, namely,, Prakash Pathak for causing firearm injury to the deceased. To substantiate this argument, learned Senior Counsel referred to post mortem report as well as the statement of the injured witness Rakesh Pal and further submitted that no active role has been assigned to the applicant to attract the offence under Section 302

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IPC. The applicant has no criminal history. He is languishing in jail since 6.9.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

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On the other hand, learned counsel for the informant and the learned AGA opposed the prayer for bail and referring to paragraph nos. 47 onwards of the affidavit filed in support of the bail application submitted that applicant himself has admitted that fire was made upon the deceased in right of private defence. Thus, he has admitted for opening fire upon the deceased. Applicant and other co-accused forming an unlawful assembly committed murder of the deceased opening fire upon him. A prima facie case is made out against the applicant also.

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In rejoinder, learned Senior Counsel appearing for the applicant submitted that if contents of paragraph nos. 47 onwards are taken into consideration then also prosecution has to establish its case on the basis of its evidence. Stand taken by the accused applicant will be scrutinized in light of the stand taken by the prosecution in the F.I.R. and also in the statement recorded under Section 161 CrPC. If entire prosecution case is taken into consideration then also role for firing is assigned to Arun Pathak and Prakash Pathak. No active role has been assigned to the applicant for committing murder of the deceased.

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Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, complicity of accused, scrutinizing the facts mentioned in the F.I.R., statement of witnesses recorded under Section 161 CrPC and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant Vikas Pathak involved in Case Crime No. 92 of 2021, under Sections 147, 148, 149, 323, 504, 506, 302, 120-B, 392, 412, 34 IPC, P.S. Lalapur, District - Prayagraj be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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1. The applicant will not tamper with the evidence during the trial.

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2. The applicant will not pressurize/ intimidate the prosecution witness.

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3. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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4. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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5. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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Order Date :- 24.2.2022 "

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On the aforesaid premise, Mr. Manish Tewary, learned senior counsel for applicants submits that case of three of named and charge-sheeted accused namely Ansul Kumar Pathak, Ashok Pathak and Prashant Patahak is similar and identical to that of co-accused Vikash Pathak, who has already been enlarged on bail. He further submits that there is no such distinguishing feature on the basis of which, case of aforesaid applicants can be distinguished from co-accused Vikash Pathak. He therefore contends that for the facts and reasons recorded in the order dated 24.02.2022, afore-mentioned applicants are also liable to be enlarged on bail on the ground of parity.

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It is then contended by learned senior counsel that applicants are innocent. They have been falsely implicated in above-mentioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in afore-mentioned case crime number.

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Mr. Manish Tewari, learned senior counsel further submits that first informant and has family members are the aggressors. Referring to the site-plan, he submits that the occurrence in question has occurred in front of the house of applicants.

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He next submits that applicant Ashok Pathak has criminal history of 10 cases including the present one. Same has been duly been explained in paragraphs 58 to 67 of the affidavit filed in support of the bail application filed by applicant Ashok Pathak. Co-accused Prashant Pathak and Ansul Pathak have no criminal history to their credit expect the present one. Applicant Anil Kumar Pathak and Prakash Pathak have no criminal history. However, learned A.G.A. contends that applicant Anil Kumar Pathak has criminal history of three cases i.e. Case Crime No. 685 of 2015 under Sections 147, 323, 506 I.P.C.,

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Case Crime No. 19A of 2020 under Sections 147, 323, 506 I.P.C and Case Crime No. 94 of 2021 under Sections 25/27 Arms Act. Learned A.G.A further contends that applicant Prakash Pathak has also criminal history of two cases i.e. Case Crime No. 685 of 2015 under Sections 147, 323, 506 I.P.C. and Case Crime No.96 of 2021 under Sections 3/25 Arms Act.

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It is further contended that applicant Anil Kumar Pathak is in jail since 22.08.2021. Applicant Ashok Pathak is in jail since 06.09.2021. Applicant Prakash Pathak @ Tarun Pathak is in jail since 26.08.2021. Applicant Prasjant Pathak is in jail since 26.08.2021. As such, they have undergone sufficient period of incarceration. In case applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. As charge-sheet has already been submitted, the evidence sought to be relied upon by prosecution against applicants stands crystallised therefore, custodial arrest of applicants is not absolutely necessary during the course of trial. On the cumulative strength of aforesaid, learned senior counsel for applicants thus urged that applicants be enlarged on bail.

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Per contra, the learned A.G.A. and Mr. Amit Kumar Srivastava, the learned counsel for first informant have opposed the present bail applications. They jointly contend that since applicants are named as well as charge-sheeted accused, they therefore, do not deserve any indulgence by this Court. It is further submitted that the role of causing injuries on the body of deceased is assigned to all the accused. As such, criminality committed by named/charge-sheeted accused cannot be segregated or separated. Criminality committed upon deceased is inter-linked and inter-twined. He therefore submits that applicants cannot claim any benefit from order dated 24.02.2022. As such, applicants are not liable to be enlarged on bail on the ground of parity.. However, learned A.G.A could

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not dispute the factual and legal submissions urged by learned counsel for applicants. Mr. Amit Kumar Srivastava, learned counsel for first informant submits that case of Anil Kumar Pathak is distinguishable inasmuch as recovery of licenced firearm has also been made from aforesaid accused. The deceased has died on account of gun shot injuries. As such, aforesaid circumstance is an incriminating circumstance against Applicant Anil Kumar Pathak and therefore, he does not deserve any sympathy of this Court.

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In rejoinder, Mr. Manish Tewari, learned senior counsel has rejoined the submissions urged by him. He further submits that though the case of applicant-Anil Kumar Pathak is distinguishable from co-accused/applicants Ashok Pathak, Prakash Pathak and Prashant Pathak inasmuch as recovery of lincenced fire arm has also been made from this applicant but that by itself is insufficient to nominate aforesaid applicant as co-author of the gun shot injuries sustained by deceased. According to learned senior counsel, in the F.I.R. the role of inflicting the fatal gun shot injuries has been assigned to named/charge-sheeted accused Arun Pathak. Subsequent to aforesaid F.I.R. the statement of the first informant was recorded by Investigating Officerr under Section 161 Cr.P.C. However, even the first informant, who is also an eye witness of the occurrence has not implicated applicant Anil Kumar Pathak as the co-author of the gun shot injuries. It is only after the postmortem of the deceased was conducted that prosecution has introduced Anil Kumar Pathak as co-author of the fatal gun shot injuries sustained by deceased. He therefore submits that irrespective of the recovery of licenced fire-arm from applicant Anil Kumar Pathat, he is liable to be enlarged on bail. He therefore submits that applicants are liable to be enlarged on bail.

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Having heard learned counsel for applicants, learned A.G.A. for State, Mr. Amit Kumar Srivastava, the learned counsel for first informant upon consideration of evidence on record, accusations made as well as complicity of applicants but without expressing any opinion on the merits of the case, applicants have made out a case for bail.

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Let the applicants -Anil Kumar Pathak, Ashok Pathak, Prakash Pathak @ Tarun Pathak and Prashant Pathak involved in aforesaid case crime number be released on bail on their furnishing a personal bond each 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) Applicants will not tamper with prosecution evidence.

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(ii) Applicants 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.

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(iii) Applicants will not indulge in any unlawful activities.

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(iv) Applicants will not misuse the liberty of bail in any manner whatsoever.

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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 of applicants and send them to prison.

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Accordingly, afore-mentioned bail applications are allowed.

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Order Date :- 11.4.2022 YK

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Digitally signed by YASHWANT KUMAR Date: 2022.04.13 12:18:59 IST Reason: Location: High Court of Judicature at Allahabad

Anil Kumar Pathak v. State of U.P.

Case brief

What is this about?

What did the court decide?

Anil Kumar Pathak v. State of U.P.

Case brief

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