Arvind Alias Kanha Vs State of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko

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Neutral Citation No. - 2024:AHC-LKO:39292

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Court No. - 28

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 5470 of 2024

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Applicant :- Arvind Alias Kanha Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko

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Counsel for Applicant :- Mohd. Shahid Akhtar,Pankaj Kumar Tripathi,Rohit Kumar Singh Counsel for Opposite Party :- G.A.

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Hon'ble Brij Raj Singh,J.

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

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The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.267 of 2022 under Sections 147, 148, 149, 323, 302/34,120-B IPC, Police Station Maholi, District Sitapur.

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It has been submitted by learned counsel for the applicant that general role of assault has been assigned to ten accused persons, including the applicant, who were armed with Lathi, Danda and Mathai (Kudal) mentioned in the FIR. Later on, the statement under Section 161 Cr.P.C. of the complainant was recorded and he is not an eye witness of the incident. The statement of injured Basant Ram Pandey, Shilpi Devi and Reshma @ Reshma Devi were also recorded under Section 161 Cr.P.C. and they have assigned the role of assault with iron rod to the applicant as well as other co-accused Ashwani Kumar and Ram Prakash with stick and further co-accused Langu @ Rahul has been assigned the role of assault with Hockey. It has been submitted by learned counsel for the applicant that the postmortem report indicates that there are five injuries; injury no.1 is fatal due to which deceased died. As per postmortem report, it has been submitted that injury no.1 is contusion 12cm x 08 cm present on left side of head just above left ear, which is fatal, but the same has not been ascertained as to who has caused the said injury and the cause of death is ante mortem head injury. Injury no.2 is minor in nature, which is an abraded contusion 01 cm x 0.5 cm present on the left side of face just below left eye. Injury no. 3 is multiple stitched wound present on front of left leg 06 cm below left knee joint. Injury no.4 is a stitched wound alongwith 02 stitches present on left palm and injury no.5 is stitched would alongwith 03 stitches present on

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the forearm 08 cm above right wrist joint. The submission advanced by learned counsel for the applicant is that injuries no. 2 to 5 are not fatal and injury no.1 is fatal due to which the deceased died. It has been submitted that the applicant has no previous criminal history. Co-accused Langu @ Rahul, Vikas, Ashwani Kumar and Ram Prakash have been granted bail by this Court vide orders dated 19.04.2024, 19.04.2024, 19.04.2024 an 10.05.2024 passed in Criminal Misc Bail Application No.8658 of 2023, Criminal Misc Bail Application No.7962 of 2023, Criminal Misc Bail Application No.7617 of 2023 and Criminal Misc Bail Application No.5100 of 2024 and case of the applicant is also at par.

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On the other hand, learned A.G.A. has opposed the prayer for bail and has submitted that on the pointing out of the applicant, the recovery of iron rod is made which he was used for assault, therefore his bail is liable to be rejected. However, he could not dispute the fact that the injury no.1 is fatal but the same has not been ascertained as to who has caused the said injury.

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Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that co-accused Langu @ Rahul, Vikas, Ashwani Kumar and Ram Prakash have been granted bail by this Court vide orders dated 19.04.2024, 19.04.2024, 19.04.2024 an 10.05.2024 passed in Criminal Misc Bail Application No.8658 of 2023, Criminal Misc Bail Application No.7962 of 2023, Criminal Misc Bail Application No.7617 of 2023 and Criminal Misc Bail Application No.5100 of 2024; the argument that general allegation of assault has been levelled; argument that the injury no.1 is fatal but the same has not been assigned to any of the accused, therefore, I am of the opinion that the applicant is entitled to be released on bail on the ground of parity.

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Let the applicant, namely, Arvind Alias Kanha , be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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 counsel. In case

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of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

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It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order.

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Order Date :- 23.5.2024 Renu/-

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Digitally signed by :- RENU AGARWAL High Court of Judicature at Allahabad, Lucknow Bench

Arvind Alias Kanha v. State of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko

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Arvind Alias Kanha v. State of U.P. Thru. Addl. Chief Secy. Home Civil Sectt. Lko

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