Neutral Citation No. - 2024:AHC-LKO:9097
Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7669
of 2022
Applicant :- Shivam Dubey S/O Sri Sushil Dubey
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko
Counsel for Applicant :- Arun Sinha,Ram Chandra
Singh,Umang Agarwal
Counsel for Opposite Party :- G.A.,Ramesh Kumar Yadav
Hon'ble Pankaj Bhatia,J.
1. Heard Sri Arun Sinha, learned counsel for the applicant as
well as learned A.G.A. and Sri Ramesh Kumar Yadav, learned
Counsel for the complainant and perused the record.
2. The applicant seeks enlargement on bail in FIR No.249 of
2021, under Sections 147, 148, 149, 302, 504, 506 IPC, Police
Station Dhanpatganj, District Sultanpur.
3. In terms of the FIR lodged on 17.10.2021 at about 06:46 PM,
it was alleged that 7 named accused persons and two others,
who were not named, came on 16.10.2021 at about 5:30 PM,
when the son of the informant and the daughter-in-law were
working in the field, the said accused persons started hitting the
son of the informant and attacked constantly at the instance of
the accused Ashish Yadav. It was also alleged that the accused
Ashish Yadav along with the applicant started hitting the son of
the informant with the use of Lathi-Danda, Iron Rod, Chain etc
and on account of such beating, the son of the informant
received substantial injuries. Subsequently, the victim was
taken to Faizabad hospital where he died on account of the
grievous injuries sustained by him.
4. In the light of the aforesaid allegations, the submission of the
counsel for the applicant is that at the first instance, as many as,
16 injuries were noticed on the body of the deceased. He further
argues that out of the said injuries, one of the injuries being
Injury No.5 was on the vital part of the body i.e. on head and
parietal region. The counsel for the applicant further argues that
the inquest report was prepared on 17.10.2021 at 12:30 in the
afternoon, which is the date prior in point of time of the lodging
of FIR. He further draws my attention to the postmortem report,
which was conducted on 17.10.2021 at about 3:00 PM, which is
also the date prior in point of time of the lodging of FIR. He
draws my attention to the injury report noticed in the
postmortem report, which are as many as 12 injuries. Out of the
said injuries, the Injury No.7, which was also the cause of
death, was in the right side of the face and head in temporal and
parietal region.
5. The Counsel for the applicant further argues that
subsequently in the statement under Section 161 of Cr.P.C., the
informant stated that on the date in question, Ashish Yadav was
hitting the son of the informant with the use of Lathi-Danda
whereas one of the co-accused Chinae @ Jitendra was hitting
with Iron Rod and the co-accused Deepak carrying country
made pistol was also hitting the son with the use of Danda. It
was also alleged that the applicant along with other co-accused
were hitting the son of the informant with the use of Danda and
as against Shibbu Shekhar Raidas, who was carrying Iron Rod,
was hitting the deceased with Iron Rod.
6. In the light of the aforesaid statement, it is argued by the
Counsel for the applicant that as the FIR in question is ante
timed FIR and was registered after the inquest and postmortem
was done. He further argues that in terms of the FIR as well as
in terms of the statement of the informant, prima facie, the role
of carrying and hitting with Lathi-Danda was assigned to the
applicant, which was general in nature without linking him with
the specific injury, which was the cause of death. He further
argues that out of the total 47 witnesses, only one of the witness
has been examined so far and thus, there is no likelihood of the
trial being concluded in near future. The applicant has no
criminal antecedents and is in custody since 30.10.2021, as
such, the applicant should be enlarged on bail. The Counsel for
the applicant also draws my attention to the criminal history of
the deceased as disclosed in para 53 of the bail application.
7. Learned A.G.A. as well as learned Counsel for the
complainant strongly opposed the bail prayer by arguing that a
gruesome murder was committed by the accused named in the
FIR along with others with common intention. It is argued that
the Danda allegedly used in the offence in question was
recovered at the instance and pointing out of the applicant. It is
further argued that the bail application of one Shibbu Shekhar
Raidas was rejected by this Court vide order dated 20.10.2022
passed in Criminal Misc. Bail Application No.12086 of 2022. It
is further argued that considering the fact that the offence was
committed by all the accused persons at a public place and also
looking to the injuries received by the deceased, the bail
application should be rejected.
8. As regards the submission of the Counsel for the applicant
that the FIR was lodged after the inquest and the postmortem
was done, it is argued that on account of there being a dispute
with regard to the jurisdiction, there was a slight variance in
lodging of the FIR, to which, the applicant cannot claim the
benefits as the incident took place near the border of two
districts.
9. It is argued by the Counsel for the informant that the
informant is aged about 75 years and she wants that the trial
should be concluded in near future. It is further argued that
merely because the deceased had criminal antecedents, the
applicant as well as the other accused persons had no right to
take law on their hands and commit an offence of the nature,
which has been done. It is, however, admitted at the bar that out
of the total 47 witnesses proposed to be examined, only one
witness has been examined so far. It is further argued that the
applicant and the other co-accused persons are not co-operating
with the trial.
10. Considering the submissions made at the bar, prima facie,
what transpires is that the FIR was registered alleging that all
the accused persons including the applicant had badly beaten
the deceased with the use of Iron Rod, Lathi-Danda etc., which
ultimately resulted into his death. The postmortem report as
well as the medical report on record indicate as many as 12
injuries sustained by the deceased prior to his death. In the
statement under Section 161 of Cr.P.C., the applicant was
assigned the role of beating with Danda. Considering the said
statement, prima facie, general role of beating is assigned to all
the accused persons including the applicant, however, from the
postmortem report, the cause of death appears to be one of the
injuries, which is Injury No.7 in the postmortem report, there is
no specific allegation against the applicant of causing injuries
which resulted int the death. The applicant is in custody since
30.10.2021 and has no criminal antecedents and also
considering the trady pace in which the trial is proceeding, there
is no likelihood of the trial being concluded in near future
coupled with the fact that there is nothing on record to
demonstrate that the applicant if enlarged on bail, would in any
way adversely affect the trial.
11. It is also necessary to mention that the bail application of
one of the accused Shibbu Shekhar Raidas was rejected on
20.10.2022, however, from the said accused allegedly Iron Rod
was recovered and he was assigned the role of beating with Iron
Rod whereas against the applicant it was alleged that he was
using Lathi-Danda, thus, there is a slight distinction.
12. Considering the long incarceration and the reasons recorded
above, I am of the view that the applicant is entitled to be
allowed
released on bail. Accordingly, the bail application is .
13. Let the applicant Shivam Dubey be released on bail in the
abovesaid first information report number on his furnishing
personal bonds and two reliable sureties of Rs.25,000/- each to
the satisfaction of the court concerned with the following
conditions:
(a) The applicant shall execute a bond to undertake to attend the
hearings;
(b) The applicant shall not commit any offence similar to the
offence of which he is accused or suspected of the commission;
and
(c) 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.
14. However, it is directed that the trial court shall proceed to
conclude the trial with all expedition by recording the evidence
on day to day basis without giving any unnecessary
adjournments to either of the parties preferably within a period
of one year.
Order Date :- 31.1.2024
akverma
Digitally signed by :-
ASHOK KUMAR VERMA
High Court of Judicature at Allahabad,
Lucknow Bench