Allowed

Akash v. State of U.P.

Allahabad HC5 Jul 2023BAIL/21045/2023

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC regarding a murder case, the High Court granted bail to the applicant who was named in the FIR but not the main shooter. The court distinguished the case from the primary accused and noted lack of recovery evidence against the applicant.

What did the court decide?

Released on bail by furnishing a personal bond and two sureties with conditions regarding tampering, attendance, and seeking adjournments.

Akash Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:132025

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21045 of 2023

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Applicant :- Akash Opposite Party :- State of U.P. Counsel for Applicant :- Ajatshatru Pandey Counsel for Opposite Party :- G.A.,Bankey Lal,Mohit Kumar Tiwari

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Hon'ble Samit Gopal,J.

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List revised.

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Heard Sri Ajatshatru Pandey, learned counsel for the applicant, Sri Mohit Kumar Tiwari, learned counsel for the first informant and Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

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Learned counsel for the first informant after arguments at length of learned counsel for the applicant when called upon submits that he may be granted time to file counter affidavit. The said prayer is seriously opposed by learned counsel for the applicant by stating that even previously on 07.06.2023 the matter was got adjourned by learned counsel for the first informant and today again he seeking time for adjournment which may not be granted and the matter be heard.

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This Court has perused the said order dated 07.06.2023 passed by a co-ordinate Bench. It reads as under:-

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"Case called out. Learned counsel for the applicant, learned counsel for the informant as well as the learned AGA are present.

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On the request of learned counsel for the informant, put up as fresh on 5.7.2023 before the appropriate Bench."

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Perusal of the same shows that on 07.06.2023 the matter was got adjourned on the request of learned counsel for the informant. It is two dates short of a month since then and even today again learned counsel for the first informant requests for an adjournment in the matter. The said prayer is rejected. The Court thus proceeds to hear the matter.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Akash, seeking enlargement on bail during trial in connection with Case Crime No. 11 of 2023, under Sections 147, 148, 149, 302, 34 I.P.C., registered at Police Station Gulawathi, District Bulandshahr.

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The First Information Report of the present case was lodged on 07.01.2023 by Gajendra against the applicant and 7 other named persons along with 8-10 unknown persons alleging therein that on 07.01.2023 his son Vikas Yadav had gone to Doly Pyaoo Kota Gate. At about 11:40 am the accused persons on Scorpio and other vehicles came and shot his son. He received an information and then took his son to Naveen Hospital, Sikandrabad for treatment after which he was taken to Kailesh Hospital but he died during treatment.

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Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that on the own showing of the first informant, he is not an eye witness. It is argued that subsequently Smt. Urmila Devi the mother of the deceased happens to be a chance witness who gives an ocular version of the incident and states that she was going with Praveen on a motorcycle and on the way she heard the shots of 2-3 fire and saw a person lying on the road after which they went from his side but she discovered that the said person is her son Vikas @ Vikki. She started shouting. She saw co-accused Amit who is also known as Banti resident of Baral firing upon her son and other named accused persons were with him. In her statement, she further stated that her son gave an oral dying declaration to her while being in the hospital that he has been shot by Banti of Baral. It is argued that as such the role of firing has been assigned to co-accused Banti Tewatiya. It is argued that Praveen Yadav the person who had taken Smt. Urmila Devi the mother of the deceased on his motorcycle was also interrogated but he did not give any ocular version to the police but only stated that the deceased gave an oral dying declaration that he has been shot by Banti of Baral. It is argued that the said witness further stated that there had been 2-3 fire at the place of occurrence and the applicant had also fired there. It is argued that there is no other eye witness of the incident. The first informant is not an eye witness. Further, while placing the postmortem examination report of the deceased it is argued that he was found to have received a single gun shot wound of entry and from the said injury one metallic bullet was recovered.

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Learned counsel has further argued that there is no recovery either from the possession or pointing out of the applicant. Para 24

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of the affidavit has been placed before the Court whereas the recovery is alleged to have been of a gun from co-accused Banti @ Amit Tewatiya and Sajan. It is further argued that from the pointing out of Banti Tiwatiya .32 bore weapon whereas from Sajan a country made pistol has been recovered. Learned counsel has argued that in the charge sheet it has been mentioned that from the co-accused Aftab there has been a recovery of certain weapon. It is argued that even otherwise the fact remains that there is no recovery of any incriminating material either from the possession or pointing out of the applicant. It is argued that looking to the facts and circumstances of the case, the case of the applicant is distinguishable with that of co-accused Banti @ Amit Tewatiya who has been assigned the main role of shooting upon the deceased. It is argued while placing para 33 of the affidavit that the applicant has no criminal history and he is in jail since 12.02.2023.

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Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant had accompanied co-accused Banti Tewatiya who had fired upon the deceased due to which he died. It is argued that even there is a version by Praveen Yadav that the applicant had also fired there at the place of occurrence. It is argued that the implication of the applicant is there in the present case and he has been named along with other co-accused persons and committed the said offence. It is argued that co-accused Aftab applied for bail before this Court which has been rejected vide order dated 11.05.2023 passed in Crl. Misc. Bail Application No. 16021 of 2023 (Aftab Vs. State of U.P.). Copy of the order has been produced before the Court which is taken on record. It is argued that as such the bail application of the applicant be rejected.

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Learned counsel for the first informant did not raise any arguments.

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After having heard learned counsels for the parties and perusing the records, it is evident that although the applicant is named in the First Information Report but there is no role assigned to him. The first informant is not an eye witness of the incident. Subsequently, Smt. Urmila Devi the mother of the deceased was interrogated as an eye witness who stated of co-accused Banti of Baral firing upon the deceased. Even an oral dying declaration was given by the deceased stating that co-accused Banti fired upon him. Praveen Yadav the person who was with Urmila Devi on the motorcycle did not give any version of firing by the applicant on the deceased but stated of the oral dying declaration of the deceased wherein the role of firing upon the deceased of coaccused Amit @ Banti Tewatiya. There are 2-3 fires having been

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done and the applicant also fired there. There is no recovery either from the possession or pointing out of the applicant.

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The case of the applicant is distinguishable with that of coaccused Banti Tiwatiaya who has been assigned the main role of firing upon the deceased.

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Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

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Let the applicant Akash , be released on bail in the aforesaid case crime number on furnishing a personal bond 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) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicant 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) 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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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 I.P.C.

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(v) 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 liberty of bail and

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proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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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 and send the applicant to prison.

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The bail application is allowed .

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Order Date :- 5.7.2023 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by :- MOHAMMAD ARIF High Court of Judicature at Allahabad

Akash v. State of U.P.

Case brief

What is this about?

What did the court decide?

Akash v. State of U.P.

Case brief

What is this about?

What did the court decide?

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