Allowed

Arjun and 2 Others v. State of U.P.

Allahabad HC7 Jul 2023BAIL/55697/2022

Case brief

AI extract

What is this about?

This criminal bail application was allowed by the Allahabad High Court for applicants charged with murder and affray. The court held issuance of bail was warranted given applicants' clean antecedents, prolonged incarceration, and settled prosecution evidence, despite a death in an incident involving cross-FIRs.

What did the court decide?

Applicants Arjun, Rohit and Mantu released on bail with personal bond and two sureties each, subject to strict conditions regarding attendance and conduct during trial.

Arjun and 2 Others Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:134918

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55697 of 2022

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Applicant :- Arjun And 2 Others Opposite Party :- State of U.P. Counsel for Applicant :- Akhilesh Srivastava,Saksham Srivastava Counsel for Opposite Party :- G.A.,Birendra Kaushik,Brijesh Kumar Verma,Devendra Kumar Yadav,Jitendra Kumar Mishra,S.K. Verma,Swapnesh Singh

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Hon'ble Rajeev Misra,J.

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Heard Mr. Akhilesh Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

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No one has put in appearance on behalf of opposite party-2 even though as many as seven counsel have put in appearance by filing their power.

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This application for bail has been filed by applicants Arjun, Rohit and Mantu, seeking their enlargement on bail in Case Crime No. 343 of 2022, under sections 147, 148, 149, 307, 323, 302, 504, 34 IPC, Police Station- Atrauli, District Aligarh, during the pendency of trial.

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Record shows that in respect of an incident which is alleged to have occurred on 21.7.2022, a delayed F.I.R. dated 21.7.2022 was lodged by first informant Yogesh and was registered as Case Crime No. 343 of 2022, under sections 147, 148, 149, 307, 323, 302, 504, 34 IPC, Police Station- Atrauli, District Aligarh. In the aforesaid F.I.R. six persons namely, Gulla Saini, Raju, Mantu, Rohit, Arjun and Lallu have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that named accused with a common intention came to first informant and thereafter assaulted first informant and others in his field. On account of above, various persons from the side of first informant sustained injuries. The details of the persons who have sustained injuries from the side of first informant in the occurrence which took place on 21.7.2022 are as under: (1) Himanshu (2) Ajay (3) Abhay (4) Deviram (5) Gudiya (6) Mahendra. Subsequently, one of the injured Deviram succumbed to the

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injuries sustained by him. Thereafter the post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon the cause of death of deceased was Cardio Pulmonary arrest as a result of septicemia. The autopsy surgeon found following anti-mortem injuries on the body of deceased:

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(1) Tracheostomy hole present in front of neck

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(2) Healed wound measuring around 2cm x 2 cm having dark brown scab present over left side of head, 7 cm above left ear.

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(3) Traumatic swelling 15 cm x 12 cm over right side of head.

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(4) Lacerated wound 6 cm x 4 cm x bone exposed over leftt foot dorsal aspect

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The medico legal report of the injured is on record as Annexure-3 to the affidavit.

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In respect of the same incident, another F.I.R. dated 21.7.2022 was lodged from the side of applicant and was registered as Case Crime No. 344 of 2022, under sections 147, 148, 149, 307, 323, 504, IPC, Police Station- Atrauli, District Aligarh. In the aforesaid F.I.R. six persons namely, Mahendra Singh, Suny, Abhay, Himanshu, Ajay, Deviram have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that on 21.7.2022, the wife of first informant was working in her field. Suddenly named accused came in the field with a common object and started assaulting the first informant and persons from the side of first informant in which various persons sustained injuries. The details of the injured persons are mentioned herein under:

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(1) Rampyari

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(2) Manoj

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(3) Rohit

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(4) Raju

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(5) Gulab

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(6) Arjun

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Injury report of the injured are on record from page 71 onwards.

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Learned counsel for applicant submits that since cross cases are registered, therefore occurrence is admitted to the parties. The only question which is required to be examined is as to who is the aggressor. This issue can be decided only during the course of trial. Up to this stage, there is no such material, on the basis of which it can be definitely concluded that applicant is an aggressor in the crime in question.

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It is next contended that co accused Gulla Saini @ Gulab Singh, Narendra Saini @ Lallu, Raju have already been enlarged on bail. Learned counsel for applicant has supplied the photo copy of the bail orders of the bailed out accused in Court today which are taken on record. The details of the same are as under:

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(1) Criminal Misc. Bail Application No. 48832 of 2022 (Gulla Saini @ Gulab Singh Vs. State of U.P)

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(2) Criminal Misc. Bail Application No. 48027 of 2022 (Narendra Saini @ Lallu Vs. State of U.P)

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(3) Criminal Misc. Bail Application No. 48027 of 2022 (Raju Vs. State of U.P)

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On the aforesaid premise, the learned counsel for applicant contends that case of present applicant is similar and identical to aforesaid bailed out co-accused. There is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid bailed out co-accused so as to deny him bail. He, therefore, contends that for the facts and reasons mentioned in the above orders, applicant is also liable to be extended the benefit of bail on the ground of parity. It is lastly submitted that applicants are men of clean antecedents, inasmuch they have no criminal history to their credit except the present one. Applicants are in jail since 22.7.2022. As such, they have been undergone almost one year of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted on 30.9.2022. As such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, up to this stage, there is no such incriminating circumstance necessitating the custodial arrest of applicant during the course of trial. To buttress his submission, he has relied upon the judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live law (SC) 373 (Para 5) . He, therefore submits 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. has opposed the present application for bail. He submits that since applicants are named as well as charge sheeted accused, therefore they do not deserve any indulgence by this Court. Criminality alleged against named accused including applicant is similar and common and therefore incapable of separation or aggregation. As such, the case of present applicants cannot be distinguished or seprated from other coaccused. There are six persons who have sustained injuries, subsequently one of the injured died. As such applicants do not deserve any indulgence by this Court.

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Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as the complicity of applicants and accusation made coupled with the fact that the incident dated 21.7.2022 in respect of the cross cases have been lodged from the side of applicant as well as first informant. In view of above, occurrence is admitted to the parties. The issue which is required to be decided is as to who is aggressor. The said issue can be decided only during course of trial and not in present proceedings. Injuries have been sustained by various persons from both the side. The F.I.R. was lodged under section 307 IPC, the deceased has died on account of Cardio Pulmonary arrest as a result of septicemia, therefore primafacie it cannot be said that deceased has died on account of ante-mortem injuries sustained by him, the clean antecedents of applicants, the period of incarceration undergone, the police report having been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants now stands crystalized, no such circumstance could be pointed out by the learned A.G.A. necessitating the custodial arrest of applicants during the course of trial, the judgement of Supreme Court in Sumit Subhaschandra Gangwal (Supra) , the period of incarceration undergone, similarly situate co-accused ahve already been enlarged on bail but without making any comment on the merits of the case applicants have made out a case for bail. Accordingly the bail application is allowed.

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Let the applicants Arjun, Rohit and Mantu @ Manoj , 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE

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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 applicant, shall have serious repercussion on his/her 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 :- 7.7.2023 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Arjun and 2 Others v. State of U.P.

Case brief

What is this about?

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Arjun and 2 Others v. State of U.P.

Case brief

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