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2021 DIGILAW 1185 (ALL)

Mainpal @ Vedpal v. State of U. P.

2021-10-05

SHEKHAR KUMAR YADAV

body2021
JUDGMENT : 1. Heard learned counsel for the applicant, learned AGA for the State and perused the record. 2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant seeking enlargement on bail during the trial in Case Crime No. 75 of 2021, under Sections 323, 307, 326, 452, 506 IPC, P.S. Biharigarh, District Saharanpur. 3. As per prosecution version, brother of informant, namely Pramod, after having his food was lying down in the house, when all of a sudden co accused, namely, Beeram, Nathiram, Sushil and Mainpal (applicant) all sons of Gyan Singh barged into the house of the informant and started physically assaulting brother of the informant and tried to drag him to their shop but somehow Pramod tried to escape from the clutches of the accused persons and ran inside the house of the informant but despite the same the said four accused persons poured some inflammable article upon brother of the informant after which they also lit a match stick and threw it upon the brother of the informant. It is alleged that at that time the informant along with his cousin Ram Pal was passing through the place of occurrence and hearing the noise of his brother, ran towards the house and seeing his brother Pramod burning, took a blanket from the neighbourhood and threw it on his brother to extinguish the fire. It is further alleged that thereafter all the accused persons fled away from the place of occurrence threatening the entire family with dire consequences. 4. It is contended by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. It is further contended that no time and date of alleged incident is mentioned in the FIR, which itself creates a doubt about the genuineness of the entire prosecution case. It is further contended that no specific role is assigned to the applicant or any other accused persons. It is further submitted that as per version of FIR, accused persons are alleged to have physically assaulted the injured and thereafter some highly inflammable substance is said to have been poured upon brother of the informant, which stands contradicted by the medical examination report of injured because apart from burn injury there is no other kind of injuries on the body of injured Pramod. It is further submitted that no incriminating materials have been recovered from the place of incident. 5. It is further contended that in the FIR as well as in statement of injured and even in the statement of informant no specific role is assigned to any of the accused person. It is only in the second statement of informant, for the first time, role of throwing the lighted matchstick has been assigned to co accused Beeram and co-accused Nathiram has been assigned the role of pouring some inflammable substances whereas applicant and co accused Sushil have been assigned the role of exhortation only. It is further contended that there is no independent witness of the alleged incident and the witnesses who have been examined are the interested witnesses. The applicant is in jail since 30.05.2021 and has no criminal history. 6. It is further contended that there is no chemical examination report on record to ascertain as to whether the burn was actually caused by acid or by any other chemical. It is further submitted that the doctor conducting the medical has no where given the opinion that the injuries were sustained as a result of acid or due to burns by flame of any inflammable materials. Further the doctor has not opined that the injury was grievous in nature or dangerous to life as such the offence under Section 307 IPC is not made out. 7. It is further submitted that the independent witnesses of the case in their statements said to have been recorded under Section 161 Cr.P.C. by the Investigating officer have stated that they have not seen anyone setting injured Pramod ablaze. 8. On the other hand, learned A.G.A. vehemently opposed the application for bail. He submits that the investigation is now complete and the charge sheet has been filed. It is further submitted that the applicant and co-accused threw acid on victim resulting in acid burn injuries, therefore, the applicant does not deserve any sympathy. 9. I have gone through the statements of the informant and the injured witness said to have been recorded under Section 161 Cr.P.C. In their statements, general role is assigned to all the accused persons by them. The informant in the second statement has only assigned the role of exhortation to applicant-Mainpal @ Vedpal and co accused Sushil. 9. I have gone through the statements of the informant and the injured witness said to have been recorded under Section 161 Cr.P.C. In their statements, general role is assigned to all the accused persons by them. The informant in the second statement has only assigned the role of exhortation to applicant-Mainpal @ Vedpal and co accused Sushil. There is serious contradictions in the statement given by the injured and the medical evidence as has come on record. The medical history of injured is shown to be of 40 % acid burn. Moreover, there is no chemical examination report certifying the fact that acid was used in the alleged commission of crime by the accused persons. 10. It is well settled that matters to be considered in an application for bail are: "(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail.” 11. In the case of Dataram Singh Vs State of Uttar Pradesh and another, reported in (2018) 3 SCC 22 , the Hon'ble Apex Court held as under: "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 12. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society." 12. In the present case the investigation is now completed and charge sheet is filed. No grounds have been made out by the prosecution to show that custodial interrogation of the applicant is necessary. 13. Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, role attributed to applicant, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, prima facie, I find it a fit case for bail. 14. Let the applicant-Mainpal @ Vedpal, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall file an undertaking to the effect that he 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. (ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC. (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., 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, in accordance with law, under Section 174-A IPC. (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., 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, in accordance with law, under Section 174-A IPC. (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 him in accordance with law. (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. 15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. 16. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses. 17. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 18. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 19. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.