Dismissed

Akash v. State of U.P.

Allahabad HC11 Jul 2023BAIL/21682/2023

Case brief

AI extract

What is this about?

Criminal court rejected bail application of applicant accused of murder and assault under IPC. Bench held applicant was part of unlawful assembly from FIR inception; one released accused was not named in FIR, justifying distinction.

What did the court decide?

Bail application rejected; applicant not entitled to release on bail.

What the court decided

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

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Neutral Citation No. - 2023:AHC:136202

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Court No. - 70

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21682 of 2023

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Applicant :- Akash Opposite Party :- State of U.P. Counsel for Applicant :- Vinay Prakash Shukla,Samya Lal Pandey Counsel for Opposite Party :- G.A.,Raj Kumar

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Hon'ble Sameer Jain,J.

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Heard Sri Vinay Prakash Shukla, learned counsel for the applicant; Sri Raj Kumar, learned counsel for the informant and Dr. S.B. Maurya, learned AGA-I for the State-respondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 99 of 2021, under Sections 147, 302, 323, 504, 506 IPC, Police Station Oonj, District Bhadohi, during pendency of the trial in the court below.

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FIR of the present case was lodged under sections 147, 308, 323, 504, 506 IPC against applicant and four others and according to the FIR, applicant and other nominated accused persons made assault upon the son of the informant through wooden sticks and due to the assault made by them he sustained serious injuries.

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Learned counsel for the applicant submitted that initially FIR of the present case was lodged under sections 147, 308, 323, 504, 506 IPC but after the death of the deceased, case was initially converted under section 304 IPC but during investigation it was again converted under section 302 IPC.

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He next submitted that on the basis of general and omnibus allegations, applicant has been made accused in the present matter alongwith four others due to previous enmity and during investigation when the statement of the alleged eye witnesses and informant were recorded then they added four more accused persons and stated that applicant and eight others made assault and even in their statements under section 161 Cr.P.C. only general and omnibus allegations have been made against all the accused persons including applicant.

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He further submitted that from the perusal of the autopsy report

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of the deceased it appears that he sustained although five injuries but out of five injuries, two injuries were on her parietal region and as per autopsy surgeon, he died due to ante mortem head injury and therefore, it cannot be said that applicant was author of these two injuries which were sustained by the deceased on his head as there is no such allegation against him either in the FIR or in the statements recorded during investigation.

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He further submitted that co-accused Karan Jaiswar who was although not named in the FIR but during investigation eye witnesses disclosed his name has already been released on bail and from the statement of the witnesses the case of applicant is at par with him.

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He next submitted that although bail of three accused persons Shiv Narayan, Rajpati and Babloo who were also nominated in the FIR alongwith the applicant have been dismissed by this Court. He placed the bail rejection order of these co-accused during the course of argument which are taken on record and collectively marked as 'A'.

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He further submitted that law is settled that there is no parity of the bail rejection and as one co-accused has already been released on bail, therefore, applicant may also be enlarged on bail.

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He further submitted that although applicant is having criminal history of two cases but he has explained criminal history of the applicant in the affidavit filed in support of the instant bail application. He further submitted that applicant is in jail since 9.12.2021 i.e more than one and a half years, therefore, he may be released on bail.

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Per contra, learned AGA and learned counsel for the informant opposed the prayer for bail and submitted that applicant since beginning was named in the FIR alongwith co-accused Shiv Narayan, Rajpati and Babloo and their bail applications have already been dismissed on merit by the co-ordinate Bench of this Court and although one co-accused was enlarged on bail but applicant cannot claim parity as he was not named in the FIR.

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They further submitted that from perusal of the FIR and other evidences available on record, it reflects that applicant was part of an unlawful assembly and under common object, he alongwith other accused persons made assault upon the deceased and due to the assault made by them deceased sustained injuries and died, therefore, considering the provision of sections 147, 149 IPC,

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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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Although from perusal of the FIR and statement of the alleged eye witnesses recorded under section 161 Cr.P.C. it appears that only general role has been assigned to all the accused persons including applicant and in the FIR, only five persons were made accused but during investigation, four persons were added but applicant since beginning was named in the FIR and therefore, even from the perusal of the FIR, it reflects that applicant was part of an unlawful assembly and he alongwith his other associates made assault upon the deceased due to which he died.

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Although bail of co-accused Karan Jaiswar was allowed by co-ordinate Bench of this Court but he was not named in the FIR. Further the bail application of three nominated accused persons Shiv Narayan, Rajpati and Babloo have been rejected by coordinate Bench of this Court after considering the entire facts of the case.

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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 :- 11.7.2023

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Ankita

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

Akash v. State of U.P.

Case brief

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Akash v. State of U.P.

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