Prabhat vs State Of Uttar Pradesh

Learned counsel for the complainant has filed counter affidavits in both the aforesaid bail applications and has submitted that the same is defective in the absence of the photograph but the same are taken on record.

Learned counsel for the applicants has filed rejoinder affidavits in both the aforesaid bail applications, which are taken on record.

Heard learned counsel for the applicants, learned counsel for the complainant, learned A.G.A. for the State and perused the record of the present bail application.

The aforesaid bail applications have been filed by the applicants Prabhat and Phauran Singh with a prayer to enlarge them on bail in Case Crime No. 456 of 2020, under Sections 147, 148, 149, 323, 452, 307, 302 I.P.C., Police Station Highway, District Mathura.

Learned counsel for the applicants has submitted that the applicants have been falsely implicated in the present case. Submission is that the first information report version is that the incident took place on 26.07.2020 at 07:30 P.M. and on the next day i.e. on 27.07.2020 at about 04:40 A.M., the first information report has been lodged in which nine accused persons have been named. On that date, it has been stated in the first information report that the accused persons came to the house of the the informant side with intention to kill and caused indiscriminate firing. Accused Jeetu, Bhola, Pawan and Prabhat were having country made pistol in their hands, whereas other accused persons namely Sonu with hockey, Digamber with an axe and accused Phauran Singh with danda attacked on the informant side. Because of firing Purushottam and Hari Om have sustained fire arm injuries and when Purushottam was taken to the hospital for treatment, during treatment he died on 07.08.2020. Submission of the learned counsel for the applicants is that all the accused persons have been implicated in this case by general allegations. In the incident Kohbi Ram has also alleged to have sustain injuries. Submission of the learned counsel for the applicant is that the witnesses were examined by the I.O. and injured Hari Om @ Bholi, who has also sustained the fire arm injury has given statement to the I.O, that Jeetu caused indiscriminate firing and he and Purushottam have sustained fire arm injuries. Submission is that as per the statement of this witness, the role of causing fire arm injuries has been assigned to co-accused Jeetu. The statement of Hari Om was again recorded by the I.O. in which he has stated that Jeetu has caused fire arm injury to Purushottam, firing of Bhola caused injury to him and Khoobi Ram has sustained the injuries of danda. The statement of Khoobi Ram was also recorded by the I.O., in which he has stated that co-accused Jeetu and accused-applicant Prabhat started firing due to which Purushottam and Hari Om have sustained fire arm injuries. co-accused Phauran Singh has been assigned the role of committing maar-peet with lathi and danda. Submission is that the role of co-accused Phauran Singh is apparently distinguishable and in view of the role assigned to him, the case against him is of only for the offence under Section 323 I.P.C. In respect of fire arm injuries, it has been submitted that the postmortem report of Purushottam shows that he has sustained only one fire arm injury and the learned counsel has also made reference to the statement of doctor who has also stated that Purushottam has sustained injury which was on the chest and the bullet went into the liver and for which an operation was conducted. It has been submitted that keeping in view the inconsistency in the statement with regard to the role of the accused-applicant Prabhat, it becomes doubtful, whether he also caused any injury to the deceased by fire arm. Submission is that when there is specific evidence of the injured persons that the firing caused by Jeetu caused fire arm injuries to the deceased, subsequent statement cannot be relied upon so as to refuse the bail of the accused-applicant. The accused-applicants are prepared to furnish the surety and bond and is giving undertaking that they will cooperate in trial. Learned counsel for the applicants has further submitted that the applicants have no previous criminal history and there is no possibility of fleeing away from the judicial process or tampering with the witnesses and in case, the applicants are enlarged on bail, the applicants shall not misuse the liberty of bail. The accused-applicant Prabhat has been in jail since 27.07.2020, whereas, the accused-applicant Phauran Singh has been in jail since 30.07.2020, hence, they are entitled to bail.

Learned A.G.A. and learned counsel for the complainant have vehemently opposed the prayer for grant of bail to the applicants but could not dispute the aforesaid facts as argued by the learned counsel for the applicants. They have further submitted that after investigation, the police has already filed charge sheet in the matter. It has been submitted that as it was a case of indiscriminate firing and the accused-applicant Prabhat has also assigned the role of firing, therefore, the fact that Purushottam sustained only one injury will absolve the criminal liability. It has also been submitted that the accused persons, while the witness Khobi was coming back to home was surrounded by accused persons and further maar-peet was committed by him in respect of the first information report was lodged. Submission is that considering the high handedness by the accused persons, the bail application is liable to be rejected.

Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties, clearly the witness who has sustained the fire arm injury has given statement that Purushottam has sustained fire arm injury by firing of co-accused Jeetu, at this stage, it has become distinguishable as the injury which has been sustained by Purushottam was caused by Jeetu. Even when, further statement of the injured was recorded, he has not stated that Purushottam has sustained injury which was caused by accused-applicant, therefore considering the role of accused-applicant Phauran Singh also the role of Prabhat in commission of the offence and also considering the fact that fire caused by accused-applicant did not hit the deceased, therefore, without expressing any opinion on merit of the case, let the applicants involved in aforesaid case crime be released on bail on their furnishing a personal bond and two sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

(i) The applicants will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that applicants are abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

(ii) The applicants will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicants will not indulge in any unlawful activities.

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 and send the applicants to prison.