Allowed

Bihari and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Allahabad HC18 Oct 2024/2961/2023

Case brief

AI extract

What is this about?

The Allahabad High Court allowed an appeal against the denial of bail to two senior citizen appellants. The court relied on medical evidence lacking external injuries, village enmity allegations, and prosecution delay to set aside the lower court order and release the appellants on bail.

What did the court decide?

Impugned order set aside; appellants released on bail furnishing ₹25,000 personal bond and two sureties of like amount.

Bihari and Another Vs State of U.P. Thru. Prin. Secy… — Caste Atrocities | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:70262

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Court No. - 12

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Case :- CRIMINAL APPEAL No. - 2961 of 2023

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Appellant :- Bihari And Another Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Balak Ram,Rahul Srivastava Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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Supplementary affidavit filed in the Court today is taken on record.

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Case called out. Service of notice on opposite party No. 2 is sufficient, as appears from Annexure No. CA-1 to the counter affidavit of State and also letter dated 03.02.2024 of CJM, Sultanpur. However, when the case was called out, no one appeared on behalf of the opposite party No. 2. Learned AGA is present in the Court. In these circumstances, the Court proceeded to hear the appeal on merits.

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Heard Sri Rahul Srivastava, learned counsel for the appellant, learned A.G.A. for the State and perused the record.

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The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the order dated 04.09.2023 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Bail Application No. 1072 of 2023 arising out of Case Crime No. 0038 of 2023, under Section 325, 316 I.P.C. and Section 3(2)V of SC/ST Act, P.S.- Maharua, District- Ambedkar Nagar.

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While pressing the instant appeal, learned counsel for the appellant submitted that as per the case of prosecution setup in the FIR in issue i.e. FIR No. 0038 of 2023 lodged by the opposite party No. 2 making allegations therein so as to attract the offences as indicated under Section 304, 316 I.P.C. and Section 3(2)V of SC/ST Act at P.S.- Maharua, District- Ambedkar Nagar, the appellants, aged about 74 and 65 years, respectively, as per supplementary affidavit filed in the Court today, assaulted the daughter of the informant/opposite party No. 2 on 13.03.2023 and thereafter she was treated at District Hospital, Ambedkar Nagar and at the hospital her pregnancy was terminated on account of said assault and after two days of admission, she was discharged from the hospital and thereafter she was again admitted in a private hospital situated at Akbarpur, Ambedkar Nagar on 28.03.2023 and during treatment, she died on 30.03.2023.

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It is also stated that the appellants thereafter were apprehended and sent to jail and they are in jail since 04.04.2023.

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It is further stated that thereafter the Investigating Officer (in short "IO") carried out the investigation and after completion of investigation filed the

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charge sheet under Sections 325 and 316 IPC and Section 3(2)V of SC/ST Act.

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It is further stated that to establish that the appellants committed the offence as indicated under Section 316 IPC, the prosecution is having one independent witness namely Mahendra Kumar but there is no medical evidence to support the case of the prosecution in this regard.

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It is further stated that according to Autopsy Surgeon, the cause of death of deceased is on account of some infection or septicemia or cellulitis or drug allergy or Steven Johnson syndrome or post partem sepsis. According to statement of Autopsy Surgeon, the deceased was moving her hands properly and there was no injury on her shoulder.

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The supplementary statement of Autopsy Surgeon further indicates that GNM namely Madhu Yadav, though not authorized, operated the deceased and removed her placenta and Autopsy Surgeon also found wound in the uterus of deceased. The relevant portion of the statement of Autopsy Surgeon, referred, is extracted hereunder:-

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" मजजदबययनडडकटर == शजअवनजशककमयर MKD हयसससटलकटररययययककबसकरआईटजआई कयललजकलसयमनलटयणडयररडअकबरसकरअमबलडकरनगरमरबयइलननबर 7752898382 करबतययल जयनलसरककददरयनकववलचनयसयययगययहहककममतकयआरतजकयकदनयनक 29:03:23 सलकरजब 10 कदनसहललघरसरहजबचचयखरयबहरगययथयइसकलबयदममतकयकयसकलतयनसकरमलएकपयइवलट कलजकनकसनचयललकयमधकययदवजजएनएमलजसकककलजकनककयरलजसटटलशनभजनहजहहकलदयरय , ममतकयककखलरज (placenta) कनकयलयगययथय , तथयममतकयकलसरसटमयटरमररसरटरमलममतकयकल uterus मलघयवसयययगययहह।आसदयरयबतयययगययहहकककदनयनक 29:03:23 करजबआरतज आसकलअससतयलसरआयजथजतरआरतजकलशरजरमलकयफकइनफलकशनसयययगययथय , आरतजकल शरजरमलजरइनफलकशनसयययगययथयकययइसकयकयरण मधक ययदवजजएनएमदयरयआरतजकयखलरज (placenta) कनकयललजयनलकलददरयनहहयजलयसरवयहजसलहरसकतयहह।तरडयकटरदयरयबतयययजय रहयहहककयहतरगमभजरबयतहहलजसकलबयरलमलआरतजकरकदनयनक 29:03:23 करहमयरलयहयभतर करयतलसमयभतरकरयनलवयललदयरयनहजबतयययगययऔरनहजआरतजकलदयरयबतयययगययथय। आरतजकलशरजरमलजरइनफलकशनसयययगययथयतथयइनफलकशनतलजजसलफहलरहयथयइसकयकयरण post aborted trauma in uterine cavity with blood clots in uterus, it may be due to, septic abortion by untrained local Dai, हरसकतयहह।डडकटरदयरयइसपकयरबतयययव बययनअनककतकरयययजयरहयहह। "

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It is further stated that alleged incident, as per the prosecution, occurred on 13.03.2023, however, the doctor concerned has not indicated any external injury on the body of deceased.

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It is stated that it appears that on account of some cause, the pregnancy was terminated and the appellants have been implicated only on account of village enmity.

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It is further stated that the appellants are languishing in jail since 04.04.2023 and several witnesses have to be examined during trial and in this aspect of the case, the conclusion of trial in near future is extremely bleak, as such, taking note of the period of incarceration as also other aspects including the medical opinion, which does not supports the story of prosecution, the appellants are entitled to be released on bail.

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It is lastly submitted that in the aforesaid facts and circumstances, the impugned order dated 04.09.2023 is liable to be set-aside and the appellants are entitled to be released on bail.

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Learned A.G.A. vehemently opposed the prayer of the appellant, however, he could not dispute the above contentions made by the appellant's counsel.

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Considered the arguments advanced by the learned counsel for the appellant, learned A.G.A. and gone through the contents of the appeal, impugned order, F.I.R., as well as other relevant documents including the medical opinion and period of incarceration of appellants.

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Upon due consideration of above facts and circumstances including the story setup in the FIR and the medical opinion related to deceased and also the period of incarceration of appellants, who are senior citizens, and keeping in view the fact that the trial of the case is not likely to be concluded in near future, this Court is of the view that the appeal has substance and it is accordingly, allowed .

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Order dated 04.09.2023 passed by Special Judge, SC/ST Act, Ambedkar Nagar in Bail Application No. 1072 of 2023 arising out of Case Crime No. 0038 of 2023, under Section 325, 316 I.P.C. and Section 3(2)V of SC/ST Act, P.S.Maharua, District- Ambedkar Nagar is hereby set aside.

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Let the appellants Bihari and Usha be released on bail in the aforesaid case crime number on their furnishing personal bonds of Rs. 25,000/- and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellants will cooperate with the prosecution during trial.

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(ii) The appellants will not tamper with the evidence during trial.

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(iii) The appellants will not pressurize/intimidate the prosecution witness(es).

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(iv) The appellants shall not commit an offence.

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(v) The appellants 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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(vi) The appellants shall remain present before the trial court on each date fixed, either personally or through counsel.

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(vii) The appellants will not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellants shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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In case of default of above conditions 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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As this order relates to enlargement of the appellants on bail, it is clarified that observations made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation made in this order.

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Order Date :- 18.10.2024 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Bihari and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Case brief

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Bihari and Another v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

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