Dismissed

Vivek Pal @ Shani v. State of U.P.

Allahabad HC25 May 2023BAIL/19930/2023

Case brief

AI extract

What is this about?

In a bail application under IPC sections including 302, 149, 148, the single judge rejected the application. The court held that given multiple eyewitnesses, recovery of weapons, and CDR connectivity, the assault involved a common object under Section 149 IPC, distinguishing a recent coordinate order granting bail to an unnamed co-accused and aligning with earlier reasoned rejections.

What did the court decide?

Bail application rejected; applicant remains in custody pending trial.

Vivek Pal @ Shani Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:118882

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Court No. - 74

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19930 of 2023

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Applicant :- Vivek Pal @ Shani Opposite Party :- State of U.P. Counsel for Applicant :- Deepak Singh Yadav,Akhilesh Kumar Mishra,Rajiv Lochan Shukla Counsel for Opposite Party :- G.A.,Manoj Kumar,Vimlendu Tripathi

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Hon'ble Sameer Jain,J.

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Heard Sri Rajiv Lochan Shukla, learned counsel for the applicant and Sri Vimlendu Tripathi, learned counsel for the informant and Sri Jhaman Ram learned AGA for the Staterespondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 4 of 2022, under Sections 147, 148, 149, 323, 504, 506, 427, 394, 411, 302, 120B IPC and Section 7 Crl. Law Amendment Act, Police Station Lalganj, District Basti, during pendency of the trial in the court below.

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FIR of the present case was lodged against the applicant and six others and some unknown persons and according to the FIR, on 2.1.2022 at about 3:30 pm when informant alongwith his uncle, Jitendra were going from his Brezza four wheeler then on the way, in the market, applicant and other accused persons intercepted them and they broke the mirror and doors of his vehicle from iron rod and after dragging his uncle from the car started beating him with iron rod, bat and hockey and due to the assault made by them, his uncle became badly injured and became unconscious and when informant and his driver tried to save him then informant also sustained injuries.

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It is further mentioned in the FIR that accused persons also looted the golden chain of his uncle and mobile of his driver and due to the serious condition, uncle of the informant was referred to Lucknow. It is further mentioned in the FIR that accused persons were criminals and number of cases have been lodged against them and due to the incident, shop keepers started closing their shops.

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Learned counsel for applicant submits that entire allegations made against the applicant is totally false and baseless and applicant on the basis of general and omnibus allegation made accused alongwith six named persons and some unknown persons and in fact, applicant neither participated in the incident nor he ever caused any injury to anyone.

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He further submits initially FIR was lodged under sections 307, 308 IPC alongwith other relevant sections but after the death of the injured, case was converted under section 302 IPC.

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He further submitted that in the FIR although seven persons were named but according to the FIR, more than 7 persons participated in the incident and post mortem report of the deceased shows that he sustained only four injuries and out of four injuries, injury no. 1 was the stitched wound and injury no. 2 was contusion and both were on his head and injury nos. 3 and 4 were abrasions and therefore, injuries sustained by deceased suggest that more than seven persons would not have been participated in the incident and this fact suggests that actually nobody witnessed the real incident and only due to previous enmity, applicant has been roped in the present matter alongwith other accused persons.

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He further submitted that although it is alleged that in the incident, informant also sustained injury but his injury suggests that he did not sustain any visible injury and he was making only complaint of pain and this fact creates doubt on his presence at spot.

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He further submitted that post mortem report of the deceased suggests that deceased sustained two injuries on his head but there is no material available on record on the basis of which it can be said that applicant is author of these injuries.

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He further submitted that although during investigation, Investigating Officer collected the call details of the accused persons and found that at the time of incident and immediately thereafter, they made conversations with each other and this fact further suggests that actually applicant did not participate in the incident as according to the CDR report from 3 pm to 3:45 pm applicant made conversations with co-accsued Vishal Pal, Vivek Pal and Babu Pal and between 15:45 to 15:58 he also made conversions with co-accused Amit Singh @ Chotu and as date of time of the incident is alleged as 3:30 pm, therefore, it is hard to believe that during commission of the crime, applicant would make conversation with another accused persons.

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He further submitted that in the FIR co-acused Monu Pal was also named but during investigation, his involvement was found false and he was exonerated by the Investigating Officer and this fact further suggests that FIR of the present case is based on false facts and number of accused persons have been falsely implicated only to increase their numbers.

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He further submitted that although bail application of coaccused Gabbar Pal and Piyush Pal have been dismissed by coordinate Bench of this Court but bail application of co-accused Vivek Pal has been allowed by another co-ordinate Bench of this Court. He further submits that law is settled that there is no parity of bail rejection order but there is parity of bail granting order and as co-accused Vivek Pal has been granted bail after the rejection of bail of co-accused Gabbar Pal and Piyush Pal, therefore, applicant may also be released on bail as case of applicant is also at par with co-accused Vivek Pal.

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He next submitted that although applicant is having criminal history of three cases but his criminal history has been explained in paragraph no. 48 of the affidavit filed in support of the instant bail application.

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He next submitted that applicant in the present matter is in jail since 5.1.2022 i.e. for last about one and a half years and therefore, applicant may be enlarge on bail.

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Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicant alongwith his associates badly beaten the uncle of the informant and due to the assault made by them, he lost his life. They further submitted that the manner of incident shows that it was a day light brutal murder and applicant and other accused persons firstly stopped the car of the informant and thereafter broken its mirrors and doors and dragged the deceased from the car and badly beaten him.

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Learned counsel for the informant further submitted that during investigation, Investigating Officer recorded the statements of number of witnesses and they stated that applicant alongwith other accused persons participated in the incident and shop keepers after shutting their shops started running from market and therefore, due to the act of the applicant and other accused persons, terror was created.

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He further submitted that during investigation, Investigating

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Officer also collected the CDR report of all the accused persons including applicant and found that on the date of incident since morning they were making conversations and this fact shows that in a planned manner, assault was made.

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He further submits that during investigation, Investigating Officer also recorded the statements of Sanjay Mishra one of the shop keepers in the market and he stated that on 2.1.2022 in the afternoon, applicant and accused Gabbar have taken two bats from his shop and he further stated that when after hearing the noises he came out from his shop then he witnessed that deceased was lying on the road near his car in injured condition and applicant and coaccused Gabbar were present at spot alongwith the bats and alongwith them some other persons were also there and therefore, the statement of Sanjay Mishra also corroborates the version of the FIR and statements of other witnesses recorded during investigation.

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Learned counsel for the informant further submitted that although bail of co-accused Vivek Pal has been granted by one coordinate Bench of this Court vide order dated 24.4.2023 vide Crl. Misc. Bail Application No. 11828 of 2023 but from the perusal of the bail order, it appears that without assigning any reason bail was granted to him.

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He next submitted that on the other hand, from perusal of the orders of co-accused Piyush Pal and Gabbar Pal, it appears that while rejecting their bail applications another co-ordinate Bench of this Court duly considered every aspect of the case in detailed manner and also observed that they were part of the unlawful assembly and after considering section 149 of the IPC, their bails were rejected and therefore, although in general, there is no parity of bail rejection but in case at hand, the co-ordinate Bench of this Court has given a finding that in the present matter, provisions of section 149 IPC also attracts and therefore, it would not be appropriate for this Court to take a different view.

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He next submitted that even from the perusal of the FIR and other material available on record, it appears that more than five persons participated in the crime including applicant and prima facie, it appears that they were sharing common objects and therefore, on the totality of the facts and circumstances of the case, applicant should not be released on bail.

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I have heard learned counsel for the parties and perused the record of the case.

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From the perusal of the FIR and statements of the eye witnesses, recorded by Investigating Officer during investigation, it appears that more than five persons, participated in the incident including applicant and applicant was named in the FIR alongwith six others and they intercepted the car of the informant and after damaging the mirrors and doors of the car, dragged the deceased out from the car and made assault through hockey, bat and iron rods and after the death of the injured, case was converted under section 302 IPC.

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Further during investigation, Investigating Officer also made recovery of the broken bat on the pointing out of applicant. Further, during investigation, damaged Brezza car of the informant was also found and further, from the CDR report of all the accused persons including applicant which has been noted by the Investigating Officer in the case diary, it reflects that all the accused persons were well connected with each other on the date of incident.

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Although as per autopsy report, deceased sustained only two injuries on his head but as rightly pointed out by learned counsel for the informant that it is a case in which more than five persons participated in the incident and manner of incident as alleged suggested that they were having common object to commit the alleged crime and at this stage, this Court can not record any finding that applicant was not having any common object.

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Further from the statement of the witness Sanjay Mishra, a shop keeper it reflects that applicant and co-accused Gabbar had taken the bat from his shop and after the incident, witness Sanjay Mishra saw that applicant and co-accused Gabbar were having bats in their hands and deceased was lying on the ground in injured condition near his car.

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Although co-accused Vivek Pal has been granted bail but his bail order shows that without assigning any reason, his bail was granted and although his bail was granted after rejection of the bails of co-accused Gabbar and Piyush Pal but in spite of that while granting bail to Vivek Pal, the bail rejection orders of coaccused Gabbar and Piyush could not be considered. On the other hand, while rejecting bails of co-accused Gabbar and Piyush, the another co-ordinate Bench of this Court discussed every aspect of the case including the provision of section 149 IPC and after recording its finding rejected their bail applications.

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Although, there is no parity of refusal of bail but it is a fact

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that bail application of two similarly placed accused persons have already been rejected by this Court on merit with a detailed and reasoned order and I do not find any good reason to take any contrary view.

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Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is not entitled to be released on bail.

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Accordingly, the instant bail application stands rejected .

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 25.5.2023 Ankita

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Digitally signed by :- ANKITA SRIVASTAVA High Court of Judicature at Allahabad

Vivek Pal @ Shani v. State of U.P.

Case brief

What is this about?

What did the court decide?

Vivek Pal @ Shani v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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