Aditya @ Vishnu Chauhan and Another v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50830 of 2023 Applicant :- Aditya @ Vishnu Chauhan And Another Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Sanjay Kumar Mishra, learned counsel for the applicants and Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicants-Aditya @ Vishnu Chauhan and Vijay Chauhan, seeking enlargement on bail during trial in connection with Case Crime No. 549 of 2023, under sections 302, 323, 504 I.P.C., Police Station Kotwali Hata, District Kushinagar.

¶4The FIR of the present case was lodged on 22.08.2023 by Om Prakash Chauhan against the applicant and two other persons alleging therein that on 22.08.2023 at about 10.30 A.M. due to dispute of children accused persons armed with lathi and danda came and assaulted his nephew Vipin Chauhan. On hearing the shouts, his mother Kailashi Devi reached there to save him, on which, the accused persons assaulted her, after which she received injury and fell down. The accused persons had run away. Then his nephew called ambulance 108 on which his mother was taken to the hospital where the doctor declared her dead.

¶5Learned counsel for the applicants argued that the F.I.R. assigns the general and omnibus role to the four accused, including, the applicants of assault upon the deceased with lathi and danda. It is argued that the deceased was found to have received two injuries on her head region and the cause of death was due to haemorrhage and shock as a result of anti mortem injury. It is argued that the brain was found to have hemotoma present on occipital region and on right temporal region. It is argued that there is no specification regarding authors of the said injuries. It is argued that further the police has shown the recovery of wooden plank of a cot from the joint pointing out of four accused persons, including, the applicants. It is argued that the same is from an open place. F.I.R. states of assault with lathi and danda but recovery is of a wooden plank of a cot which does not corroborate with the prosecution case. It is further argued that the applicants are not having any criminal history as stated in para 23 of the affidavit. The applicants are in jail since 24.08.2023.

¶6Per contra learned counsel for the State has opposed the prayer for bail but could not dispute the aforesaid contention.

¶7After hearing the counsel for the parties and perusing the record, it is evident that the four accused persons, including, the applicants have been assigned the role of assault upon the deceased with lathi and danda. The recovery is on joint point out of four accused persons of wooden plank of cot. The deceased was found to have received two injuries. The author of the said injuries is not known.

¶8Looking 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 applicants may be enlarged on bail.

¶9Let the applicants-Aditya @ Vishnu Chauhan and Vijay Chauhan, 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 applicants will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The applicants 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 applicants shall file an undertaking to the effect that they 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 applicants will not misuse the liberty of bail in any manner whatsoever. In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

(v) The applicants 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 applicants 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 them in accordance with law and the trial court may proceed against them 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 applicants.

¶10The 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.

¶11The bail application is allowed. Order Date :- 28.11.2023 K.K. Maurya (Samit Gopal,J.) High Court of Judicature at Allahabad