Sushil Kumar Mishra v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22489 of 2023 Applicant :- Sushil Kumar Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kumar Shukla,Vishveshwar Mani Tripathi Counsel for Opposite Party :- G.A.,Anirudh Kumar Upadhyay Hon'ble Samit Gopal,J.

¶1Shri Gaurav Kumar Shukla, learned counsel for the applicant, Shri Anirudh Kumar Upadhyay, learned counsel for the first informant and Shri Devendra Nath Mishra, learned counsel for the State are present.

¶2This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Sushil Kumar Mishra seeking enlargement on bail during trial in connection with Case Crime No. 100 of 2022, under Sections 147, 148, 149, 352, 323, 306, 504 and 506 I.P.C., Police Station Kotwali, District Basti.

¶3The first information report of the matter was lodged on 11.02.2022 by Vivekanand Mishra against the applicant and six other persons alleging therein that his neighbour Vijay Nath Mishra had dispute with him with regards to property, regarding which a suit which is pending. On 11.02.2022, due to construction of a balcony which was being done by Vijay Nath Mishra, he went to the place and told him to stop it on which they tried to enter into maar-peet and after which Vijay Nath Mishra and the other accused persons including applicant at about 11.00 a.m. started abusing and armed with lathi, sariya, knife and hammer assaulted him due to which, he received lot of injuries. Krishnavati, wife of Vijay Nath Mishra and Reeta Mishra his daughter were exhorting, on seeing him receiving injuries, his sister Kanya Kumari came shouting to save him on which the accused persons assaulted her and set her on fire. The persons of nearby and neighbours on hearing shout, reached the place of occurrence to intervene. His sister was taken to the District Hospital from where looking to her condition, she was referred to the Medical College where she is being treated.

¶4Learned counsel for the applicant argued that general role has been assigned to the applicant and six other co-accused persons of assault upon the first informant and also upon the sister Kanya Kumari and of setting her on fire. It is argued that a dying declaration is alleged to have been recorded of the deceased Kanya Kumari on 12.02.2022 in which she has given general role to all the accused persons including the applicant of pouring oil on her and setting her on fire. It is argued that there is a CCTV footage of the place of occurrence which shows that after the fight between the parties, the deceased Kanya Kumari set herself on fire and sustained burn injuries. It is argued that the said CCTV footage was sent to the Forensic Science Lab which was examined and a report was sent stating of its genuinity. It is further argued that co-accused Prabhat Kumar Mishra has been granted bail by a co-ordinate Bench of this Court vide order dated 24.01.2023 passed in Criminal Bail Application no. 18564 of 2022, Prabhat Kumar Mishra vs. State of U.P., co-accused Pawan Mishra has been granted bail vide order dated 24.01.2023 passed in Criminal Misc. Bail Application No. 16515 of 2022, Pawan Mishra vs. State of U.P., Virendra Mishra has been granted bail vide order dated 24.01.2023 passed in Criminal Misc. Bail Application No. 24035 of 2022, Virendra Mishra vs. State of U.P., co-accused Vijay Nath Mishra has been granted bail vide order dated

17.02.2023 passed in Criminal Misc Bail Application No. 7564 of 2023, Vijay Nath Mishra vs. State of U.P. The copies of the said orders have been placed before the Court which are annexure no. 12 to the affidavit in support of the bail application. It is argued that as such, the bail application be allowed.

¶5The applicant is having no criminal history as stated in paragraph no. 26 of the affidavit in support of the bail application and is in jail since 06.04.2023. It is further argued that the first information report was initially lodged under Sections 147, 148, 149, 352, 323, 326, 504 IPC, but during investigation, Section 326 IPC was deleted and Section 306 IPC was added in it.

¶6Learned counsel for the applicant argued that there is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased, the applicant has no motive at all to commit the aforesaid offence.

¶7Per contra, learned Counsel for the State and learned counsel for the first informant vehemently opposed the prayer for bail. It is argued that initially the applicant was granted anticipatory bail vide order dated 27.05.2022 passed in Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 3340 of 2022 against which the informant filed a SLP (Criminal) No. 6166 of 2022 which was allowed by the Apex Court vide order dated 29.07.2022 and the order of the High Court was set aside. It is argued that then the applicant did not surrender, but absconded for nine months and it was only when coercive measures were taken against him, he surrendered on 06.04.2023. It is further argued by learned counsel for the first informant that anticipatory bail of co-accused Virendra Mishra was rejected by this Court vide order dated 29.04.2022 passed in Criminal Misc. Anticipatory Bail Application No. 3224 of 2022, Virendra Mishra vs. State of U.P. and anr. The copy of the order has been produced before the Court which is taken on record. It is argued that Subhadra Kumari, the mother of the deceased has supported the prosecution case which gets corroboration from the dying declaration of the deceased in which the applicant and the other accused persons are stated to have poured kerosene on her daughter and set her on fire. It is argued that the deceased received 86% burn on front of her body. The doctor where she was taken in an injured condition, opined the object of causing injury is kerosene oil, as its smell was present. It is argued that the applicant did not even consider and respect the order of the Apex Court inasmuch after the SLP of the informant was allowed and the order granting anticipatory bail of the applicant was set aside, he absconded for nine months and it was only after coercive measures were issued against him, he surrendered. It is further argued that paragraph nos. 12 and 13 of the affidavit in support of the bail application states in specific terms that the applicant Sushil Kumar Mishra lodged FIR as against Case Crime No. 396 of 2021, Police Station Kotwali, District Basti, but the said fact is incorrect fact inasmuch as the copy of the first information report which is annexed as annexure no. 8 to the bail application would go to show that the said FIR was lodged by Vijay Nath Mishra and not by Sushil Kumar Mishra, the applicant. It is further argued that identically in paragraph no. 13, it is stated that the applicant Sushil Kumar Mishra lodged FIR as Case Crime No. 491 of 2021, Police Station Kotwali, District Basti which is also incorrect as a reading of the said FIR which is annexed as annexure no. 9 to the affidavit would go to show that the same was also lodged by Vijay Nath Mishra and not by the applicant. It is argued that the abscondence of the applicant, nature of evidence, the statement of Subhadra Kumari and medical evidence, the applicant is involved in the present case and the case is of the applicant along with co-accused persons pouring kerosene on the deceased and setting her on fire. The bail application be thus, rejected.

¶8After having heard learned counsel for the parties and perusing the records, it is evident that the applicant is named in the FIR. He is also named in the dying declaration of the deceased along with other co-accused persons. The role assigned is of pouring kerosene on the deceased with other co-accused persons and setting her on fire. The applicant was granted anticipatory bail by a co-ordinate Bench of this Court. The said order was challenged before the Apex Court wherein the said order was set aside. After the same, the applicant absconded for nine months and it was only after coercive measures issued against him he surrendered. There is no explanation for the abscondence of nine months of the applicant after the order of the Apex Court, this shows his highest disregard for courts of law. Insofar as co-accused persons are concerned, although, they have been granted bail by co-ordinate benches of this Court, but the orders cannot be binding on this Court. Parity may be one of the considerations while considering the bail application, but cannot be the sole and only criteria for decision of the bail application.

¶9Looking to the facts of the case, the medical evidence, conduct of the applicant and the nature of the case, this Court does not find it a fit case for bail, hence, the bail application is rejected. Order Date :- 30.10.2023 Vipasha (Samit Gopal, J.) High Court of Judicature at Allahabad