Shamshul v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45879 of 2023 Applicant :- Shamshul Opposite Party :- State of U.P. Counsel for Applicant :- Suyash Mehrotra,Sudhir Mehrotra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1Heard Sri Sudhir Mehrotra, learned counsel for the applicant and Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

¶2This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Shamshul, seeking enlargement on bail during trial in connection with Case Crime No. 296 of 2023, under Section 304 I.P.C., Police Station Bilariyaganj, District Azamgarh.

¶3The first information report of the present matter was lodged on

18.08.2023 by Nasreen against the applicant and Isamuddin @ Saif alleging therein that on 18.08.2023 at about 12 noon his brother Nafees aged about 13 years and Kaif aged about 11 years were playing near the door of the house wherein they had a quarrel as some mud spell over them. On hearing shouts Isamuddin @ Saif and his mother Shamshul came there and assaulted Samiun the mother of the informant with a piece of wood which hit her head. The assault was by Isamuuddin on her head after which the applicant Shamshul with a danda assaulted his mother due to which she fell on the ground and became unconscious.

¶4Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the deceased Samiun was found to have received a single contusion on her right skull with fracture. The cause of death was opined as coma due to antemortem head injury. It is alleged that co-accused Isamuddin hit her with a piece of wood on her head after which the applicant assaulted with a danda. It is argued that the injury as received by the deceased is stated to have been caused by the co-accused. It is further argued that the present incident is an incident of sudden quarrel due to some fight between children. There is no pre-meditation. The applicant is a lady and is entitled to the benefit of Section 437 Cr.P.C. It is argued that the case of the applicant is distinguishable with that of co-accused Isamuddin. The applicant has no criminal history as stated in para 08 and is in jail since

20.08.2023.

¶5Per contra, learned counsel for the State has opposed the prayer for bail.

¶6After having heard learned counsel for the parties and perusing the record, it is apparent that the dispute arose because of a fight between children wherein co-accused is stated to have assaulted the deceased on her head with a piece of wood after which the applicant is stated to have assaulted the deceased. There is only one injury received by the deceased. The applicant is a lady. The case of the applicant is distinguishable with that of co-accused Isamuddin.

¶7Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

¶8Let the applicant-Shamshul, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicant 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) The applicant shall file an undertaking to the effect that 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, in accordance with law, under section 174-A I.P.C.

(v) 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 her in accordance with law and the trial court may proceed against her under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

¶9The 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 applicant to prison.

¶10The bail application is allowed. Order Date :- 31.10.2023/AS Rathore (Samit Gopal,J.) High Court of Judicature at Allahabad