Allowed

Bishnu and Another v. State of U.P.

Allahabad HC21 Sept 2023BAIL/33246/2023

Case brief

AI extract

What is this about?

Hearing bail applications for applicants Bishnu, Deepak, and Mahesh charged with murder and affray in Uttar Pradesh. The High Court allowed bail noting the applicants' clean record, contemporaneous incarceration, and prosecution admission that they only instigated rather than inflicted the fatal injury, finding no ground for continued detention.

What did the court decide?

Applicants released on bail with personal bond and two sureties each upon fulfillment of specified conditions regarding court attendance and non-misuse of liberty.

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

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Neutral Citation No. - 2023:AHC:183019

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33246 of 2023

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Applicant :- Bishnu And Another Opposite Party :- State of U.P. Counsel for Applicant :- Surendra Mohan Mishra,Sr. Advocate,Vishveshwar Mani Tripathi Counsel for Opposite Party :- G.A.,Praveen Kumar Pandey

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Connected with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29737 of 2023

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Applicant :- Mahesh Opposite Party :- State of U.P. Counsel for Applicant :- Surendra Mohan Mishra,Vishveshwar Mani Tripathi Counsel for Opposite Party :- G.A.,Praveen Kumar Pandey

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Hon'ble Rajeev Misra,J.

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Heard Mr. Surendra Mohan Mishra, Advocate along with Mr. Vishveshwr Mani Tripathi, the learned counsel for applicants, the learned A.G.A. for State and Mr. Praveen Kumar Pandey, the learned counsel representing first informant.

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Perused the record.

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These applications for bail have been filed by applicantsBishnu, Deepak and Mahesh, seeking their enlargement on bail in Case Crime No. 59 of 2023, under Sections 147, 148, 149, 323, 504, 506, 302, 307 IPC, Police Station-Barhaj, District-Deoria during the pendency of trial.

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Record shows that initially an incident occurred on 22.02.2023 in which, 2 persons namely Akhilesh Jaiswal and Amit Jaiswal sustained injuries. The FIR in respect of the aforesaid incident was lodged by one of the injured namely Akhilesh Jaiswal and was registered as Case Crime No. 59 of 2023, under Sections 323, 504, 506 IPC, Police Station-Barhaj, District-Deoria. In the aforesaid FIR, 3 persons namely - (1) Rajkumar @ Dukhanti, (2) Deepak

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and (3) Bishnu have been nominated as named accused.

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It further transpires from the record that subsequently on account of the intervention of well wishers and elders of the family and society, the parties entered into a compromise, which was drawn at the concerned police station.

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Irrespective of above, on 22.02.2023, Rajkumar @ Dukhanti along with his 4 sons namely - Keshav @ Keshari, Bishnu, Deepak and Mahesh along with 2 unknown persons came at the shop of the injured Akhilesh Jaiswal and thereafter, abused him. Subsequently, one of the accused namely Keshav @ Keshari assaulted Akhilesh Jaiswal on his head with a heavy sharp edged weapon (Dao) on account of which, he sustained serious injury on his head. The injured was taken to the District Hospital, Deoria, where on account of his critical condition, he was referred to the Medical College, Gorakhpur. Ultimately, the injured was shifted to City Hospital, Gorakhpur where he was operated upon.

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In respect of the said incident, an application dated 23.02.2023 was submitted to the Station House Officer of the concerned police Station Barhaj. On receipt of the said application, the case was converted under Section 307 IPC and the written report referred to above was treated as an FIR being Case Crime No. 59 of 2023, under Sections 323, 504, 506 IPC, Police Station-Barhaj, DistrictDeoria. Ultimately, the injured Akhilesh Jaiswal succumbed to the injuries on 02.03.2023.

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The inquest (Panchayatnama) of the body of deceased was conducted on the next day i.e. 03.03.2023. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was characterized as homicidal. Thereafter, the post mortem of the body of deceased was conducted. In the opinion of Autopsy Surgeon, who conducted the autopsy of the body of deceased, the cause of death of deceased was opined as hemorrhage and shock as a result of ante-mortem head injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-

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"1. Stitched wound L. front parietal region 12 cm in lentgh (19 stitches).

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2. Sitched wound ove Rt. Temporo parietal region 12.5 cm in length (17 stitches).

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3. Stitched wound over Lt. temporo parietal region 12 cm in

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length (26 stitches).

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4. Drain in situ Rt. Temporal region 7 cm above Rt. Ear.

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5. Stitch 1 cm in length over Rt. Parietal region."

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During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of following persons namely - (i). Rajkumar @ Dukhanti, (ii). Keshav @ Keshari, (iii). Bishnu, (iv). Deepak and (v) Mahesh is established in the crime in question. He, accordingly, submitted the charge sheet dated 21.05.2023 whereby aforementioned accused have been charge sheeted under Section 147, 148, 149, 323, 504, 506, 302, 307 IPC.

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Learned counsel for applicants contends that though applicants are named as well as charge sheeted accused yet they are liable to be enlarged on bail. Attention of the Court was invited to the written report, copy of which is on record at page 33 of the paper book. On the basis of above, it is contended by the learned counsel for applicants that it is an admitted case of the prosecution that the author of the fatal head injury sustained by the deceased is coaccused Kesari, therefore, the case of rest of the named/charge sheeted accused is distinguishable from aforementioned coaccused. The only role assigned to the present applicants and other is that of exhortation. He, therefore, contends that the case of present applicants being distinguishable from aforementioned coaccused, therefore, they are liable to be enlarged on bail.

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Even otherwise, applicants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 24.02.2023. As such, they have undergone more than 7 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. He, therefore, contends that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. for State and Mr. Praveen Kumar Pandey, the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicants are named as well as charge sheeted accused, therefore, they do not deserve any indulgence by this Court. Inviting the attention of Court to the document occurring at page 32 of the paper book i.e. written report, on the basis of which, present criminal proceedings have been registered, he submits that criminality assigned to each of the named/charge sheeted accused is joint and common. As such, the same is incapable of separation or segregation. Resultantly, no exception can be carved out in the case of present applicants. They, therefore, contend that no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

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Having heard, the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that as per the admitted case of the prosecution, the author of the fatal head injury sustained by the deceased is co-accused Kesari, as such, role of the present applicants and other charge sheeted coaccused is distinguishable from named/charge sheeted co-accused Kesari, the only role assigned to the applicants as per the said report is that of exhortation, the clean antecedents of applicants, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicants have made out a case for bail.

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Accordingly, the bail applications are allowed .

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Let the applicants-Bishnu, Deepak and Mahesh , be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions

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which are being imposed in the interest of justice:-

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE 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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(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) 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 PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

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(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

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However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 21.9.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Bishnu and Another v. State of U.P.

Case brief

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Bishnu and Another v. State of U.P.

Case brief

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