Allowed

Dinesh Kumar v. State of U.P.

Allahabad HC7 Jun 2023BAIL/22195/2023

Case brief

AI extract

What is this about?

The Allahabad High Court granted bail to the applicant in a murder case where the accused was not directly assigned the role of firing. The court noted contradictions between the FIR and witness statements, the lack of direct involvement, and the dicta of the Supreme Court on speedy trial and personal liberty.

What did the court decide?

Release of applicant Dinesh Kumar on bail by furnishing a personal bond and two sureties, subject to standard conditions against tampering with evidence or witnesses.

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

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Neutral Citation No. - 2023:AHC:125239

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Court No. - 81

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22195 of 2023

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Applicant :- Dinesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Birendra Singh Khokher Counsel for Opposite Party :- G.A.

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Hon'ble Nalin Kumar Srivastava,J.

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Heard learned counsel for the applicant as well as the learned A.G.A for the State and perused the record.

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It is alleged in the FIR that named accused persons Adesh and Monu came to the house of the deceased on 28.02.2023 at about 08:30 p.m. and when the deceased came to the gate of the house they opened fire upon him and he died. On the shrieks of the family members of the deceased, the accused persons fled away. FIR was lodged against the named accused persons, namely, Adesh and Monu on 28.02.2023 and investigation started.

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It is submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. He has not committed the present offence. It is further submitted that no role of murder has been assigned to him in the FIR of the case. It is further submitted that prosecution story and evidence are very shaky. It is further submitted that wife of the deceased, who is said to be the eye-witness of the case had not named the accused in her statement given to the Investigating Officer. Other witnesses Yashveer Singh and Ran Singh have also named Sudhanshu and Suraj as the assailants. It is further submitted that during the course of investigation when the accused Suraj was arrested by the police he confessed that the murder was committed by him along with co-accused Suraj and he has further stated that desi pistols used in the commission of crime were provided to them by the present accused Dinesh Kumar. It is further submitted that no recovery of murder weapon ( desi pistol) has been made from the present accused. It is also submitted that accused applicant has no criminal history. He is languishing in jail since 6.3.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

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Per contra, on the other hand, learned AGA has vehemently argued that the present accused is a member of criminal conspiracy for the murder of the deceased along with other accused persons. It is further submitted that desi pistol used in the commission of crime of murder were provided to the assailants Suraj and Sudhanshu by the present accused. It is further submitted that ample evidence has been collected against the present accused during the course of the investigation by the Investigation Officer, but, however, he could not dispute this fact that at the time of offence, the present accused was not present on the place of the occurrence and he had not opened fire upon the deceased.

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I have considered the rival submissions made by the learned counsel for the parties.

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6. In Union of India Vs. K.A. Najeeb (2021) 3 SCC 713 , the Hon'ble Apex Court has observed that:-

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"15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail."

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7. In Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , the Hon'ble Supreme Court has held as under :

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"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

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22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to

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the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.

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23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."

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In this matter, prima facie there are contradictions between the F.I.R. version and the statements of witnesses recorded by the I.O. No role of firing has been assigned to the present accused. The applicant is in jail since 6.3.2023. Hence, keeping in view the nature of the offence, evidence, complicity of the accused, the dictum of Hon'ble Apex Court in the aforesaid cases as well as in the case of Dataram Singh vs. State of U.P. and another, (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed .

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Let the applicant Dinesh Kumar involved in Case Crime No.174 of 2023, under Sections 302, 120-B IPC and 3/25/35 Arms Act, P.S. Baraut, District - Baghpat be released on bail on 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 will not tamper with the evidence during the trial.

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(ii) The applicant will not pressurize/ intimidate the prosecution witness.

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(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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(iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

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(v) 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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In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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It is made clear that the submissions and observations made in this order are only for deciding the bail application. Trial Court while deciding the trial will not be influenced with the same.

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Order Date :- 7.6.2023

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m.a.

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

Dinesh Kumar v. State of U.P.

Case brief

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Dinesh Kumar v. State of U.P.

Case brief

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