Allowed

Gappu Sharma @ Jaideep Kumar Sharma v. State of U.P.

Allahabad HC21 Nov 2022BAIL/45820/2022

Case brief

AI extract

What is this about?

In a bail application under Section 439 Cr.P.C. in a murder case based on circumstantial evidence, the High Court held that the applicant could be released on bail by furnishing a personal bond and two sureties, subject to strict attendance and conduct conditions.

What did the court decide?

Release on bail by furnishing a personal bond and two sureties in the like amount, subject to specified conditions regarding court attendance and conduct.

Gappu Sharma @ Jaideep Kumar Sharma Vs State… — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 76

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45820 of 2022 Applicant :- Gappu Sharma @ Jaideep Kumar Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Ghan Shyam Das,Sr. Advocate Counsel for Opposite Party :- G.A.,Akash Khare,Hari Om

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Hon'ble Shekhar Kumar Yadav,J.

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Heard Sri Kamal Krishna, learned Senior Advocate assisted by Mr Ghan Shyam Das, learned counsel for the applicant, learned AGA for the State and perused the record. Mr Hari Om, learned counsel for the complainant is also present.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail during the trial in Case Crime No. 187 of 2022, under Sections 147, 148, 149, 302, 34, 120-B IPC, P.S. Naini, District Prayagraj.

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As per contents of the FIR, it is alleged that mar-peet was committed by accused Siddhanath Sharma and others with elder brother of informant aged about 40 years, namely, Brijesh Singh, after four days of Holi festival, over result of election of State Assembly as also over cracking of firecrackers but due to arrival of friends of Brijesh Singh, no big incident is said to have taken place on that day. It is alleged that applicants and his associates are supporters of Samajwadi Party and always tried to eliminate Brijesh Singh any how as they were having animosity with him. It is alleged that the accused persons were not getting success in causing harm for want of chances. It is further alleged that children of Brijesh Singh were studying in International Academy, Malhara Phatak, Naini and Brijesh Singh (deceased), used to take his children after the School gets over and on 28.4.2022 at about 12 p.m. when Brijesh Singh was waiting his children at the gate of the said School, at that time four persons covering their face with some others came on motorcycles and surrounded Brijesh Singh and with an intention to kill him, opened fire at him as a result of which, he sustained injuries on his face and head and died instantly on the spot. It is further alleged due to the said incident, the shopkeepers went out from the spot after closing their shops. It is further alleged that informant believed that all the named accused persons caused murder of Brijesh Singh, on account of previous incident and animosity.

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It is contended by learned counsel for the applicant that the

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applicant is innocent and has been falsely implicated in the present case on the basis of suspicion. It is further submitted that there is no evidence to connect the applicant with the crime in question. It is further submitted that from bare perusal of the FIR itself it is clear that informant was not an eye witness of the incident. The applicant has been implicated on account of suspicion and previous enmity regarding election. It is further submitted that the statements of the informant or the panch witnesses or the witnesses of circumstantial evidence do not show involvement of accused applicant in the present case. Entire allegations is based upon hearsay evidence. It is further submitted that nothing was recovered from the possession or from the pointing out of the present applicant. It is further submitted that there is no public or independent witness in the present case. It is further submitted that two of the witnesses, who have been examined by the Investigating Officer, have not named the applicant as person involved in the incident. It is further submitted that the only evidence against the applicant is of one witness, namely, Shri Prakash Singh, who is uncle of deceased, who had stated that he had seen the applicant going towards the place of incident. It is further submitted that it is a case of circumstantial evidence and there is no direct or indirect evidence against the applicant for committing murder of deceased. It is further contended that perusal of the G.D. entry No. 40 dated 28.4.2022 itself shows the information regarding murder was received by police at 12.05 p.m. and thereafter inquest proceeding started and the time of inquest is mentioned as 2.15 p.m. (14.15) on the inquest report but surprisingly on the inquest report the case crime number is also mentioned, whereas the time of lodging of report is mentioned as 5.28 p.m., which itself shows the FIR is suspicious and afterthought. It is further submitted that during investigation no plausible evidence showing involvement of accused in alleged offence is forthcoming, therefore, it would not be appropriate to keep him in custody as he is in custody since 24.07.2022. Further, chargesheet in the matter has been filed and conclusion of trial will take time, hence it is prayed that the applicant be released on bail.

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It is further submitted that father of the applicant, namely, co accused Sidhnath Sharma, has already been enlarged on bail by this court vide order dated 15.09.2022 passed in Criminal Misc Bail Application No. 36340 of 2022.

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On the other hand, learned A.G.A. opposes the application for bail. It is further submitted that in a case of criminal conspiracy, it is not possible to collect direct evidence and the same is to be inferred from the circumstances available, inasmuch as, in the instant case, there was previous enmity

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between the deceased and the applicant. It is further submitted that as per postmortem report deceased sustained four firearm injuries of entry wound and three firearm exit wounds and the death was caused due to firearm injuries. It is further submitted that statements of the witnesses recorded during investigation, are prima facie relevant to show motive and preparation of the accused for commission of offence, and, hence applicant is not entitled for bail. However, learned AGA has pointed out that the applicant has criminal history of three cases apart from present case.

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I have perused the averments made in the bail petition, FIR., the order passed by the lower Court and also the entire charge sheet material produced in the case as also looking to the materials collected by the Investigating Officer during investigation and perusing the entire charge sheet material, it clearly goes to show that there are no eye witnesses to the alleged incident of murder and the case of the prosecution is based on the circumstantial evidence. So far as the accused having criminal history of three cases, the same has been explained in the supplementary affidavit according to which accused has been granted bail in all those three case by the court below.

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I have also perused the statements of the first-informant and the circumstantial witnesses, namely, Prakash Narayan Singh, Mohit Kumar Singh, Sangam Lal and Ashish. These witnesses have no where stated that the accused applicant is involved in the commission of the offence, but what they have stated in their statements before the Investigating Officer after narrating the fact is that they came to know about all these facts after the incident. So, it clearly goes to show that they have no personal knowledge and their statements are hearsay in nature. Even if their statements are accepted for the sake of appreciation and arguments that itself will not make out a case that it will prove the prima facie case of the alleged conspiracy of the present applicant with other co-accused persons in the commission of alleged offence. When the case rests on the circumstantial evidence, the prosecution is required to bring on record the satisfactory material to establish the link of chain of circumstances which is exclusively suggesting the involvement of applicant in the commission of the alleged offence. It is no doubt true, prosecution placed the material that on the voluntary statement of the other co accused persons, motorcycles and other incriminating materials used in the present offence have been recovered. Only by mere recovery of the vehicle and other incriminating materials, the Court cannot infer at this stage that it is going to prove the prima facie case about the involvement of the applicant and other co accused persons in the commission of the alleged offence. Therefore, looking to the entire materials

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placed on record and as the investigation of the case has already been completed, charge sheet has been filed, and as it is also the contention of the present applicant in the bail petition that he is totally innocent and he is not involved in the commission of the alleged offence and there is a false implication of the present applicant on account of suspicion, he can be admitted to bail, even on the ground of parity also.

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Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, as also considering the fact that apparently the case is totally based on circumstantial evidence and circumstances are yet to be established during trial, at this stage without commenting on the merits of the case, I find it a fit case for bail. However, any observation made herein-above, will not affect the trial of the case.

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Let the applicant- Gappu Sharma @ Jaideep Kumar Sharma, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant 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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(ii) The applicant 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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(iii) In case, the applicant misuses 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 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 IPC.

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(iv) The applicant 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 applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of

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liberty of bail and proceed against him in accordance with law.

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(v) The Trial Court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

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In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 21.11.2022/RavindraKSingh

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Digitally signed by RAVINDRA KUMAR SINGH Date: 2022.11.25 16:50:03 IST Reason: Location: High Court of Judicature at Allahabad

Gappu Sharma @ Jaideep Kumar Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

Gappu Sharma @ Jaideep Kumar Sharma v. State of U.P.

Case brief

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What did the court decide?

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