Allowed

Ayush Sharma @ Aashu Sharma v. State of U.P.

Allahabad HC12 May 2022BAIL/8041/2022

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC regarding death-of-a-person charges, the High Court allowed bail despite the applicant's criminal history, noting the accused was not initially named and conspiracy relied solely on a lone witness statement. The order grants significant liberty.

What did the court decide?

Release of applicant on bail by personal bond and two sureties on furnishing specific undertakings regarding trial attendance and conduct.

Ayush Sharma @ Aashu Sharma Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2022)

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Court No. - 72

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8041 of 2022

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Applicant :- Ayush Sharma @ Aashu Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Pradeep Chauhan Counsel for Opposite Party :- G.A.,Amit Kumar Srivastava

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Hon'ble Sanjay Kumar Pachori,J.

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Heard Shri Pradeep Chauhan, learned counsel for the applicant, Shri Pankaj Kumar Tripathi, learned A.G.A. for the State, Shri Amit Kumar Srivastava, learned counsel for the first informant and perused the material on record.

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The present bail application has been filed on behalf of applicant Ayush Sharma @ Aashu Sharma under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 212 of 2021 for offence punishable under Sections 147, 148, 149, 302, 34, 307, 504, 120B of the Indian Penal Code, registered at Police Station Rohaniya, District Varanasi, during pendency of the trial, after rejecting the bail application of the applicant by Sessions Judge, Varanasi vide order dated 10.1.2022.

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Brief facts of the case are that the First Information Report dated 6.4.2021 at 7.48 a.m. has been lodged by younger brother of the deceased against co-accused Neeraj, Dheeraj, Dayanath Pandey and unknown persons under Sections 147, 148, 149, 302, 34, 504, IPC stating therein that on 5.4.2021 in the evening his elder brother, aged about 50 years, first informant and his nephew Amit Kumar Dubey have gone to attend the Arti in Shooltankeshwar Temple. After the Arti at about 10.00 p.m., his elder brother Narayan Dutt Tiwari left the temple to go home by his motorcycle earlier to the first informant. After sometime first informant left for home with his nephew on his motorcycle. As soon as his elder brother reached near the house of Gappu Lal Srivastava, 4-5 persons including the named coaccused persons, reached there by two motorcycles, stopped his brother and started indiscriminate firing upon him due to which his brother fell down. First informant and his nephew also reached on the spot. After hearing the sound of fire, two acquaintances of first informant namely, Ajay Kumar Mishra and Nagendra Pandey and other passersby reached on the spot and they have seen the incident in the headlight of motorcycle and torch. After that co-accused persons and unknown persons by using filthy language and firing indiscriminately fled away

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from the place of incident. Shortly before the incident, coaccused Neeraj Pandey had threatened his elder brother for dire consequences due to enmity of land dispute. His elder brother died on the spot. The people present on the spot informed the police. The police took his brother to Trauma Centre, B.H.U. where the doctor declared him dead.

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After lodging the first information report, inquest of the body of the deceased was conducted on 6.4.2021 at 11.30 a.m. at Trauma Centre, B.H.U., Varanasi. Postmortem of the body of the deceased was also conducted on 6.4.2021 at 1.30 p.m. As per postmortem report, five firearm entry wound and five fire arm exit wound were found on the person of the deceased; two in front of neck and left side of neck; three on abrasion collar, one on mastoid region, one on the upper part of the back of chest, one on the left side of back of chest, two on back of right side of chest. Time of death was 3/4th day prior to postmortem. The Investigating Officer has recorded the statements of the first informant Durga Prasad Tiwari and eye witnesses Nagendra Pandey, Ajay Kumar and Amit Kumar and after recording the statements of the prosecution witnesses under Section 161, Cr.P.C. and after taking blood stained and simple earth from the spot, charge sheet has been submitted against three named persons on 2.7.2021 and cognizance was taken by the court concerned on 5.7.2021. As per Investigating Officer, further investigation was pending against unknown persons. During further investigation supplementary charge sheet has been filed against the applicant and four other persons. The applicant was arrested on 24.8.2021.

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Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive in the supplementary charge sheet. The applicant was not named in the first information report. First information report has been lodged by eye witness of the incident. It is further argued that on the basis of statement of eye witnesses, charge sheet has been submitted against the named co-accused persons Neeraj Pandey, Dheeraj and Dayanath Pandey on 2.7.2021. It is further argued that after submitting charge sheet or taking cognizance in the matter, further investigation was pending against unknown persons. On 17.8.2021 Uma Shankar Tiwari in his statement recorded under Section 161, Cr.P.C. first time assigned the role of hatching criminal conspiracy to the present applicant and five other persons. There is no other evidence except statement of Uma Shankar Tiwari against the applicant. No incriminating article has been recovered from the possession or pointing out of the applicant. Alleged recovery of 9 mm pistol, which was not recovered under Section 27 of Evidence Act, has been

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recovered without complying the mandatory provisions of Section 100, Cr.P.C. There is no public or eye witness of the alleged recovery. It is further submitted that Call Detail Report of the applicant collected during further investigation is not connected with the named co-accused persons.

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He has next argued that the applicant has criminal history of one case bearing case crime No. 412 of 2021, under Sections 3/25/7/27 Arms Act.. Criminal history of the applicant has been explained in para 16 of the affidavit. If the applicant is released on bail, he shall not misuse the liberty of bail.

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Per contra , learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.

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After considering the facts of the present case it prima facie appears that;

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(a) First information report has been lodged against named coaccused Neeraj, Dheeraj, Dayanath Pandey and unknown persons;

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(b) Applicant was not named in the first information report;

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(d) Name of the applicant surfaced on the basis of statement of Uma Shankar Tiwari after about four months of the incident;

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(e) There is no other evidence with regard to criminal conspiracy.

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It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

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Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118 , the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

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Let applicant, Ayush Sharma @ Aashu Sharma 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 subject to the following conditions:

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(i) 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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(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.

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(iii) 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 of Cr.P.C.

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(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

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(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.

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

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that 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 liberty of bail and proceed in accordance with law.

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The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

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The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

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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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Order Date :- 12.5.2022 T. Sinha

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Digitally signed by TRIPTI SINHA Date: 2022.05.18 14:44:34 IST Reason: Location: High Court of Judicature at Allahabad

Ayush Sharma @ Aashu Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

Ayush Sharma @ Aashu Sharma v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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