Pappu Ahirwar v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35898 of 2023 Applicant :- Pappu Ahirwar Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Pradeep Kumar, Advocate, holding brief of Mr. Ajay Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant-Pappu Ahirwar, seeking his enlargement on bail in Case Crime No. 113 of 2023, under Sections 498-A, 304 IPC, Police Station-Mauranipur, District-Jhansi during the pendency of trial.

¶4Record shows that in respect of an incident, which is alleged to have occurred on 13.02.2023, a delayed FIR dated 28.02.2023 was lodged by first informant-Goivind Das (brother of the deceased) and was registered asCase Crime No. 113 of 2023, under Sections 498-A, 304 IPC, Police Station-Mauranipur, District-Jhansi. In the aforesaid FIR, 2 persons namely -(1) Pappu (applicant herein) and

(2) Smt. Beni Bai have been nominated as named accused.

¶5The gravamen of the allegations made in the FIR is to the effect that named accused deliberately assaulted the sister of the first informant on account of which, she sustained injuries. Thereafter, the injured was admitted to Medical College, Jhansi. Ultimately she succumbed to the injury sustained by her on 25.02.2023.

¶6After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. 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 the injuries 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, opined that the cause of death of the deceased Comma as a result of ante-mortem head injury. The Autopsy Surgeon found following ante-mortem injury on the body of deceased:- "1. 12 cm x 7 cm swelling on Lt. side of scale, 8 cm about of Lt. ear."

¶7During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of present applicant alone is established in the crime in question. He, accordingly, submitted the charge sheet dated 21.05.2023 whereby the applicant Pappu alone has been charge sheeted under Sections 498-A and 304 IPC whereas the other named accused has been exculpated.

¶8Learned 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. The marriage of the applicant with the deceased was solemnized 20 years before the date of occurrence. The deceased was a short tempered lady and she used to quarrel with the applicant on trivial issues. In the scuffle, which took place, the applicant brushed his wife on account of which, she fell down and sustained injuries from the pillars of the cot (Paya). The son of the applicant who is an eye witness of the occurrence was examined under Section 161 Cr.P.C. by the Investigating Officer, who has narrated the same story. On the above premise, the learned counsel for applicant submits that the occurrence giving rise to present criminal proceedings has occurred at the spur of the moment. The same is not the outcome of any calculated mens rea or or any pre-planned act of the applicant. Therefore, the offence in question is covered under the 4th exception to Section 300 IPC. As such, the case is not liable to travel beyond Section 304 IPC.

¶9Even 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 02.03.2023. As such, he has undergone more than 7 and 1/2 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 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.

¶10Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶11Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that as per the statement of the eye witness of the occurrence namely Sandeep Ahirwar, the occurrence giving rise to present criminal proceedings occurred at the spur of the moment on account of grave and sudden provocation, as such, the same is not the outcome of any calculated mens rea or or any pre-planned act of the applicant, therefore, criminality, if any, committed by the applicant shall be overt under the 4th exception to Section 304 IPC i.e. culpable homicide not amounting to murder, the clean antecedents of 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 in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. 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.

¶12Accordingly, the bail application is allowed.

¶13Let the applicant-Pappu Ahirwar, 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 229-A 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 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 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.

¶14However, 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. Order Date :- 19.10.2023 Vinay High Court of Judicature at Allahabad High Court of Judicature at Allahabad