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2023 DIGILAW 529 (ALL)

Vardan v. State of U. P.

2023-02-22

SANJAY KUMAR SINGH

body2023
JUDGMENT : 1. Heard Shri Sachin Malik, learned counsel for the applicant and Shri Rabindra Kumar Singh, learned Additional Government Advocate representing the State and perused the record. 2. By means of this application under Section 439 of Cr.P.C., applicant Vardan, who is involved in Case Crime No. 184 of 2021, under Sections 302, 34 IPC, police station Adarsh Mandi Shamli, district Shamli, seeks enlargement on bail during the pendency of trial. 3. In nutshell, the facts giving rise to the present application are that the informant, who is uncle of Sameer (hereinafter referred as 'the deceased') lodged a first information report on 10.09.2021 against eight accused persons namely Vatanraj, Vardan, Akshay, Raj, Ashish, Luckky, Chintu alias Ayush Rana and Bhonda with the allegations inter alia that on 09.09.2021 at about 6.00 PM, as soon as the deceased got down from the bus at Banat Bus Stand, the aforementioned accused persons, who were present there from before and who harbour enmity with the deceased, with a common intention assaulted the deceased with lathi, danda and iron rod and also bashed her head on the road. On listening the noise, Alkama, Jahid and Fazil, who were already present there, rushed to the spot. The FIR further alleges that considering the victim as dead, the accused ran away. On reference to one hospital after another, the deceased succumbed to the injuries. 4. Main substratum of argument of learned counsel for the applicant is that first information report of this case has been lodged against eight accused persons, namely, Vatanraj, Vardan (present applicant), Akshay, Raj, Ashish, Luckky, Chintu @ Aayush Rana and Bhonda, but after culmination of investigation, four persons, namely, Raj, Chintu, Ashish and Bhonda have been exonerated and charge-sheet has been submitted only against Vatanraj, present applicant-Vardan, Akshay and Luckky. It is next submitted that co-accused Akshay Rana, Vatan Raj and Luccky have been granted bail vide orders dated 13.07.2022, 06.09.2022 and 03.01.2023 in Criminal Misc. Bail Application Nos. 18593 of 2022, 21199 of 2022 and 48995 of 2022, respectively and on the ground of parity, the applicant is also entitled to be released on bail. It is next submitted that co-accused Akshay Rana, Vatan Raj and Luccky have been granted bail vide orders dated 13.07.2022, 06.09.2022 and 03.01.2023 in Criminal Misc. Bail Application Nos. 18593 of 2022, 21199 of 2022 and 48995 of 2022, respectively and on the ground of parity, the applicant is also entitled to be released on bail. It is next submitted that as per the prosecution case, injuries to the deceased were caused by lathi, danda and iron rod by the accused persons including the present applicant, by which he died, but in the post mortem report, single injury was found on the head of the deceased which was in the nature of traumatic swelling (10 cm x 8 cm on left side parietal region). It is also pointed out that during investigation, role of causing said injury has been assigned to the present applicant Vardan, but it is also the case of the prosecution that on pushing by all the accused persons, the deceased fell down. Much emphasis has been given by contending that the aforesaid injury cannot be caused by danda. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 10.09.2021 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial. 5. On the other hand, learned Additional Government Advocate representing the State submits that eyewitnesses Niyazuddin, Rajveer alias Thakur, Aslam, Javed and Rahul have assigned the role of causing injury by danda to the present applicant and danda used in the commission of crime has also been recovered from the applicant. He further submits that it is a brutal murder, which has been committed in day light in a crowded market. 6. Placing reliance upon the decision of Hon'ble Supreme Court in Brijmani Devi Vs. Pappu Kumar (2022) 4 SCC 497 , learned Additional Government Advocate also submits that parity cannot be the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons, then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed. 7. Pappu Kumar (2022) 4 SCC 497 , learned Additional Government Advocate also submits that parity cannot be the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons, then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed. 7. After the incident, the victim (deceased) was brought to Primary Health Centre, Kudana, district Shamli, where he was examined. The doctor at Primary Health Centre Kudana, Shamli found the “fracture of occipital bone of skull, 8 cm above from right ear. Complaint of pain on back area. The doctor further noted that the victim was brought in an unconscious state. 8. The victim died while he was being taken to Muzaffarnagar. In the postmortem report doctor found the following ante-mortem injuries: “T/S of size 10 cm x 8 cm on the left side parietal region. Parietal bone fractured (left)”. 9. In the opinion of the doctor, the cause of death of the victim (deceased) was coma as a result of ante-mortem injury. 10. In this case four persons have been charge-sheeted namely Akshay Rana, Vatan Raj, Luckky alias Sagar and the present applicant Vardan, out of whom three persons have been granted bail by the Coordinate Bench of this Court. 11. A coordinate Bench of this Court while granting bail to co-accused Akshay Rana vide order dated 13.7.2022 in Criminal Misc. Bail Application No. 18593 of 2022, has specifically noted that eye-witness Rajveer has stated that four persons including the applicant (Akshay Rana) caught hold of the deceased whereas accused Vardan assaulted with danda on the head of the deceased and danda was also recovered at the instance of accused-Vardan. The Court further noted that in the above fact, the role of catching hold has only been assigned to the applicant (Akshay Rana). 12. Co-accused Vatan Raj has been granted bail by the Coordinate Bench of this Court in Criminal Misc. Bail Application No. 21199 of 2022 vide order dated 06.9.2022 only on the ground of parity with co-accused (Akshay Rana). 13. Another co-accused Luckky alias Sagar has been granted bail by the Coordinate Bench of this Court in Criminal Misc. Bail Application No. 48995 of 2022 vide order dated 03.1.2023 on the ground of parity with the aforementioned two co-accused namely Akshay Rana and Vatan Raj. 14. 13. Another co-accused Luckky alias Sagar has been granted bail by the Coordinate Bench of this Court in Criminal Misc. Bail Application No. 48995 of 2022 vide order dated 03.1.2023 on the ground of parity with the aforementioned two co-accused namely Akshay Rana and Vatan Raj. 14. In nutshell, co-accused Akshay Rana has been granted bail on the ground that he was only assigned the role of catching hold by the eyewitness Rajveer whereas co-accused Vatan Raj and Luckky alias Sagar have been granted bail on the ground of parity with accused Akshay Rana. It is to be noted that the coordinate Bench of this Court while granting bail to co-accused Akshay Rana, has indicated that the main role of assault by danda has been assigned to the present applicant (Vardan). 15. In sum and substance, the co-accused Akshay Rana, Vatan Raj and Luckky alias Sagar, who have been granted bail by the Coordinate Bench of this Court have been assigned the role of catching hold by the witnesses, whereas the applicant has been attributed the role of assault by danda on the head of the deceased. 16. Time and again the Apex Court directed that while granting bail, the Courts should exercise discretion judiciously and framed guidelines for granting bail to an accused. 17. In Prahlad Singh Bhati Vs. NCT of Delhi and Others (2001) 4 SCC 280 , Hon'ble Apex Court laid down following principles for granting bail to the accused: “(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 18. In Ram Govind Upadhyay Vs. Sudarshan Singh (2002) 3 SCC 598 , Hon'ble Supreme Court observed that grant of bail though being a discretionary order, but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail. More heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” 19. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another (2004)7 SCC 528 , Hon'ble Supreme Court held thus: “The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly, where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.” 20. Any order devoid of such reasons would suffer from non-application of mind.” 20. In Anil Kumar Yadav Vs. State (NCT of Delhi), (2018)12 SCC 129 , Hon'ble Supreme Court spelt out some of the significant considerations which must be placed in the balance in deciding the bail application, which reads as under: “While granting bail, the relevant considerations are:- (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard and fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court.” 21. Hon'ble Supreme Court in Brijmani Devi (Supra) deprecated the practice to allow bail application without assigning any reason by observing as under: "Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum. 22. Having heard the learned counsel for the parties and examined the matter in its entirely, I find that the applicant has been assigned the main role of causing injury on the head of the deceased, which proved fatal and further the danda, which was used in the commission of crime has also been recovered at the pointing out of the applicant. So far as the submission of learned counsel for the applicant that injury found on the head of the deceased cannot be caused by danda is concerned, the same is the matter of evidence, which can appropriately be adjudicated by the trial court after examining the doctor, who has conducted the postmortem examination of the deceased. 23. So far as the submission of learned counsel for the applicant that injury found on the head of the deceased cannot be caused by danda is concerned, the same is the matter of evidence, which can appropriately be adjudicated by the trial court after examining the doctor, who has conducted the postmortem examination of the deceased. 23. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of the parties, gravity of offence, role assigned to the applicant, severity of punishment and the facts that applicant has been assigned the main role of assaulting the deceased and further danda, which was used in the commission of crime has been recovered at the instance of the applicant, I do not find any good ground to release the applicant on bail. 24. Accordingly, the bail application of the applicant is rejected at this stage. 25. It is clarified that observations made herein above are only for the purpose of disposal 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 conclusion on the basis of evidence to be adduced uninfluenced by anything mentioned in the order.