Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 2231 (ALL)

Ramkesh v. State of U. P.

2023-09-27

RAJEEV MISRA

body2023
JUDGMENT Rajeev Misra, J. Heard Mr. Sunil Kumar Dubey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rajiv Sisodia, the learned counsel representing first informant. 2. Perused the record. 3. This application for bail has been filed by applicant-Ramkesh, seeking his enlargement on bail in Case Crime No. 307 of 2022, under Sections 323, 304, 308, 504, 506 IPC, Police StationBaccharayun, District-Amroha during the pendency of trial. 4. Record shows that in respect of an incident, which is alleged to have occurred on 25.11.2022, a prompt FIR dated 25.11.2022 was lodged by first informant-Mohit Kumar and was registered as Case Crime No. 307 of 2022, under Sections 323, 504, 506 IPC, Police Station-Baccharayun, District-Amroha. In the aforesaid FIR, applicant-Ramkesh Singh has been nominated as solitary named accused. 5. The gravamen of the allegations made in the FIR to the effect that named accused assaulted the maternal grandmother (Nani) of the first informant namely Naththho Devi on account of which, she sustained injuries. The FIR further states that Mausi of the first informant namely Rakesh Devi was also abused and assaulted by the applicant. 6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. Unfortunately, the injured Naththho Devi succumbed to the injuries sustained by her on 27.11.2022. The information regarding the same was given to the Investigating Officer. Resultantly, the case was converned under Section 304 IPC. 7. Subsequent to the above, the 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 categorized as homicidal and the cause of death of deceased was said to be head injury sustained by the deceased. Thereafter, the post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased, came to the conclusion that the death of deceased has occurred on account of Coma, Cardio Respiratory Arrest due to ante mortem injuries (Head injuries) The Autopsy Surgeon found followinig antemortem injuries on the body of deceased:- "1. Stitched wound of size 6.5 cm over Lt. side of forehead, Just above (Lt.) eyebrow. 2. Stitched wound of size 2 cm over Lt. side of face. 3. Stitched wound of size 1.5 cm over Lt. Ear pinna to Lt. side face. 4. Stitched wound of size 6.5 cm over Lt. side of forehead, Just above (Lt.) eyebrow. 2. Stitched wound of size 2 cm over Lt. side of face. 3. Stitched wound of size 1.5 cm over Lt. Ear pinna to Lt. side face. 4. Stitched wound of size 2.5 cm over Lt. ear to be to pinna. 5. Stitched wound of size 7 cm over Rt. side of head 7 cm above Rt. Ear. 6. Lacerated wound of size 4 cm x 1 cm bone deep over Lt. side of skull 5 cm away for Lt. ear." 8. During course of investigating, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the FIR. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of applicant is fully established in the crime in question. He, accordingly, submitted the charge sheet dated 09.12.2022 whereby applicant has been charge sheeted under Sections 323, 304, 308, 504, 506 IPC. 9. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. He has invited the attention of Court to the FIR and on basis thereof, he submits that in the occurrence giving rise to present criminal proceedings, the deceased had not sustained any grievous or fatal injury inasmuch as, the FIR was registered under Section 323 IPC etc. and not under Sections 307, 308 or 324 IPC. Reference was then made to the post mortem report of the deceased and on basis thereof, it is urged that in the opinion of Autopsy Surgeon, the cause of death of deceased was Coma, Cardio Respiratory Arrest on account of ante-mortem injuries (head injuries) sustained by the deceased. He, therefore, contends that the deceased has died not on account of any immediate act of applicant. 10. According to the learned counsel for applicant, the occurrence in question has occurred at the spur of the moment on account of grave and sudden provocation. There is no calculated mens rea with the applicant to commit the crime in question nor the same is the out come of any pre-planned act of the applicant. As such, the same is squarely covered under the 4th exception to Section 300 IPC. There is no calculated mens rea with the applicant to commit the crime in question nor the same is the out come of any pre-planned act of the applicant. As such, the same is squarely covered under the 4th exception to Section 300 IPC. It is urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. 11. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 29.11.2022. As such, he has undergone almost 9 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. 12. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Much emphasis was laid upon the post mortem report of the deceased in support of the submission that the deceased had sustained injuries on his head, and the same was also the cause of death of deceased. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 13. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. 13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that in the FIR giving rise to the present criminal proceedings, the applicant was charged only under Sections 323, 504, 506 IPC, the effect of the same is that the injured (deceased) had not sustained any grievous or fatal injury on his person, as per the medical opinion, the deceased has died on account of Coma, Cardio Respiratory Arrest due to ante-mortem injuries (Head Injuries), the death of deceased is not directly attributable to any act of the applicant, the occurrence in question has occurred on account of grave and sudden provocation and at the spur of the moment, as such, there is no calculated mens rea with the applicant to commit the crime in question nor the same is the out come of any preplanned act of the applicant, as such, offence complained of shall not travel beyond Section 304 IPC, the clean antecedents of the applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal v. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail. 14. Accordingly, the bail application is allowed. 15. 14. Accordingly, the bail application is allowed. 15. Let the applicant-Ramkesh, be released on bail in the aforesaid case crime number on his 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) The Applicant Shall File An Undertaking To The Effect That He/she 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/her Counsel. In Case of His/her Absence, Without Sufficient Cause, The Trial Court May Proceed Against Him/her Under Section 229A IPC. (iii) In Case, The Applicant Misuses The Liberty of Bail During Trial And In Order To Secure His/her 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/her, In Accordance With Law, Under Section 174A 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 The Him/her 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. 16. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.