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2023 DIGILAW 2053 (ALL)

Rohit v. State of Uttar Pradesh

2023-08-25

RAJEEV MISRA

body2023
JUDGMENT : 1. Heard Mr. Ajay Kumar Dwivedi, the learned counsel for applicants and the learned A.G.A. for State 2. Perused the record. 3. Instant application for bail has been filed by applicants-Rohit and Shyamsunder seeking their enlargement on bail in Case Crime No. 331 of 2023 under Sections 304, 308, 323 I.P.C. Police Station-Tundla, District-Firozabad, during the pendency of trial. 4. Record shows that in respect of an incident which is alleged to have occurred on 23.04.2023, a delayed F.I.R dated 29.04.2023 was lodged by first informant Akash Kumar and was registered as Case Crime No. 331 of 2023 under Sections 308, 323 I.P.C. Police Station-Tundla, District-Firozabad,. In the aforesaid F.I.R. two persons namely Rohit and Shyamsunder (applicants herein) have been nominated as named accused. 5. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. Thereafter, inquest (panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterised as homicidal. Subsequent to above, the post-mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of the deceased, cause of death of deceased was on account of pulmonary arrest as a result of septimic shock. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:- i. Old surgical intention present Lt. side abdomen. ii. Ryles tube, foleqs calbeter and wine bag. 6. During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C., who have also supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that prima-facie complicity of applicants is fully established in the crime in question. He accordingly submitted the charge sheet dated 22.07.2023 against both the named accused. Subsequently, Investigating Officer submitted an application under Section 173 (8) Cr.P.C. before court concerned praying for further investigating. However, no supplementary charge-sheet has yet been submitted before court below according to the learned A.G.A. 7. Learned counsel for applicants contends that though the applicants are named as well as charge-sheeted yet they are liable to be enlarged on bail. Subsequently, Investigating Officer submitted an application under Section 173 (8) Cr.P.C. before court concerned praying for further investigating. However, no supplementary charge-sheet has yet been submitted before court below according to the learned A.G.A. 7. Learned counsel for applicants contends that though the applicants are named as well as charge-sheeted yet they are liable to be enlarged on bail. He has invited the attention of Court to the post-mortem report of the deceased and on basis thereof, he submits that the deceased has not died on account of an immediate injury caused by present applicants. As per medical opinion, the deceased has died on account of pulmonary arrest as a result of septimic shock. He has then invited the attention of Court to the statement of the driver of Ambulance on which the injured/deceased was taken to the hospital as well as the statements of Doctor, who had administered primary treatment to the deceased. As per aforesaid statement the injured/deceased was under the spell of intoxication. Both the accused and deceased were under the spell of intoxication. Present case is a case of sudden provocation, therefore, same is covered under the under the fourth exception to Section 300 I.P.C. It is thus urged that applicants are liable to be enlarged on bail. Even otherwise applicants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants are in custody since 29.05.2023. As such they have undergone approximately three months of incarceration. Police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. On the above premise, the learned counsel for applicants thus 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. 8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicants are named as well as charge-sheeted accused, therefore they do not deserve any indulgence by this Court. However, he could be dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage. 8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicants are named as well as charge-sheeted accused, therefore they do not deserve any indulgence by this Court. However, he could be dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage. 9. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicants coupled with the fact that present case is a case of sudden provocation, therefore, same is covered under the fourth exception to Section 300 I.P.C., accused as well as the deceased were under the spell of intoxication, the same is clearly established from the statement of the Drivr of Ambulance on which the injured/deceased was taken to the hospital, deceased has not died on account of an immediate act of applicants, as per opinion of the Autopsy Surgeion the deceased had died on account of pulmonary arrest as a result of septimic shock, police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicants stands crystallised, yet in spite of above the learned A.G.A. could be point out any such circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, the period of incarceration undergone by applicants, the clean antecedents of applicants but without expressing any opinion on the merits of the case, applicants have made out a case for bail. 10. Accordingly, present application for bail is allowed. 11. Let the applicants-Rohit and Shyamsunder involved in aforesaid case crime number be released on bail on their 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:- (i) Applicants will not tamper with prosecution evidence. (ii) Applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) Applicants will not indulge in any unlawful activities. (iv) Applicants will not misuse the liberty of bail in any manner whatsoever. 12. (ii) Applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) Applicants will not indulge in any unlawful activities. (iv) Applicants will not misuse the liberty of bail in any manner whatsoever. 12. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send them to prison.