Ajeet Kumar Yati v. State of U.P

` Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42782 of 2023 Applicant :- Ajeet Kumar Yati Opposite Party :- State of U.P. Counsel for Applicant :- Rama Shankar Mishra Counsel for Opposite Party :- G.A.,Ashok Kumar Singh Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29454 of 2023 Applicant :- Deepak Rai Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar Pandey,Sharvan Kumar Rai Counsel for Opposite Party :- G.A.,Ashok Kumar Singh With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33510 of 2023 Applicant :- Vivek Rai @ Ravan Rai Opposite Party :- State of U.P. Counsel for Applicant :- Kalp Dev Mishra,Awashesh Kumar Counsel for Opposite Party :- G.A.,Ashok Kumar Singh Hon'ble Rajeev Misra,J. Heard Mr. Rama Shankar Mishra, the learned counsel for applicant-Ajeet Kumar Yati, Mr. Anil Kumar Pandey, the learned counsel for applicant-Deepak Rai, Mr. Kalp Dev Mishra, the learned counsel for applicant-Vivek Rai @ Ravan Rai, the learned A.G.A. for State and Mr. Ashok Kumar Singh, the learned counsel for first informant. Perused the record. Supplementary affidavit filed by the learned counsel for applicant-Ajeet Kumar Yati, in Court today, is taken on record. These applications for bail have been filed by applicants-Ajeet Kumar Yati, Deepak Rai and Vivek Rai @ Ravan Rai, seeking their enlargement on bail in Case Crime No. 189 of 03, under sections 147, 302, 201, 506, 34 IPC, Police Station-Kotwali, District Ghazipur, during the pendency of trial. Record shows that an F.I.R. dated 14.4.2023 was lodged by Jai Singh, father of the deceased and was registered as Case Crime No. 189 of 03, under sections 147, 30, 201, 506, 34 IPC, Police Station-Kotwali, District Ghazipur. In the aforesaid F.I.R. two persons namely, Ram Naresh Rai and Ravi Rai have been nominated as named accused. Subsequent to the above mentioned F.I.R, the skeleton of the body of deceased was recovered on 14.4.2023. As per report of autopsy surgeon, the cause of death of deceased was opined as ante-mortem head injury. Investigating Officer during course of investigation, examined first informant and other witnesses under section 161 Cr.P.C. namely, Sanjeev Sahu @ Kalu, Sandeep Yadav, Smt. Shobha Singh, Vishal Singh, Ajeet Yadav. On the basis of above and other material collected by Investigating Officer, it was discovered that not only the complicity of named accused but also three other persons namely, Deepak Rai, Vivek Rai, and Ajeet Giri is also established. Accordingly, all the aforesaid accused were arrested. The weapon of assault (Lohe ka Phatta) was recovered from Ravi Rai, This witness in his confessional statement has conferred that fatal blow upon the deceased was given by him. Subsequently, on the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of aforementioned accused is established in the crime in question. He, accordingly submitted the charge sheet dated 21.6.2023, whereby aforesaid accused have been charge sheeted under sections 147, 302, 201, 506, 34 IPC. At the very outset, learned counsel for applicants submit that named and charge sheeted co-accused Ram Naresh Rai, has already been enlarged on bail by this Court vide order dated

3.10.2023, passed in Criminal Misc. Bail Application No. 27572 of 2023 (Ramnaresh Rai Vs. State of U.P.). For ready reference, the same is reproduced herein under: "वररममान दमाणणቄኌक ्ቚककीरर जममानर ्ቚमाररनमा पत, आववेदक रमामनरवेश रमाय ककी ओर सवे ममु०अ०ससं० 189 सन 2023, अन्ररर धमारमा 147, 302, 201, 506, 34 भमा०दसं०वव०, रमानमा कोतवाली,oजजला‌गाजीपुर‌मे‌जमानत‌पर‌मुकሹ ‌करने‌हेतु‌पቚ स् तुत‌वकया‌गया‌ह।ै आवेदक‌के ‌ववदान‌अजधवकሹ ा‌ने‌पूरक‌शपथपत‌दाजखि ल‌वकया,oइसे‌पतावली‌पर‌रखि ा‌जाय। आवेदक‌के ‌ववदान‌अजधवकሹ ा‌एवं‌ववदान‌अपर‌शासकीय‌अजधवकሹ ा‌को‌सुना‌तथा‌पतावली का‌पररशीलन‌वकया। आवेदक‌के ‌ववदान‌अजधवकሹ ा‌का‌कथन‌ह‌ै वक‌आवेदक‌को‌इस‌पቚ करण‌मे‌गलत‌एवं‌फजर तरीके ‌से‌झठू ा‌फॅ साया‌गया‌है ,oउसने‌कजथत‌अपराध‌काररत‌नहीሻ ‌वकया‌है,oपቚ थम‌सूचना रररपोट‌के ‌अनुसार‌घटना‌का‌कोई‌चश् मदीद‌साकी‌नहीሻ ‌ह‌ै तथा‌न‌ही‌कोई‌पररबस् थवतजन् य साकኚ य‌ह,ै oपቚ थम‌सूचना‌ररपोटर‌के ‌अनुसार‌मतृ क‌आवदत् य‌6-7oमाह‌से‌घर‌नहीሻ ‌गया‌था, इसके ‌बावजूद‌भी‌वकसी‌थाने‌मे‌कोई‌पቚ थम‌सूचना‌ररपोटर‌अंवकत‌नहीሻ ‌करायी‌गयी , आवेदक‌ववशेष‌न् यायाधीश,oगगै ेस् टर‌ऐक् ट‌न् यायालय‌मे‌ववशेष‌लोक‌अवभयोजक‌के ‌पद‌पर कायर त‌ह,ै oपቚ भारी‌वनरीकक‌वववेचक‌से‌गगै ेस् टर‌कोटर‌मे‌मुकदमे‌के ‌दौरान‌हॉट-टाक‌हो‌गया जजसके ‌पቚ वतशोध‌मे‌उन् होሻ ने‌आवेदक‌का‌चालान‌इस‌मामले‌मे‌कर‌वदया,oआवेदक‌वनदरኘ ष‌है तथा‌वह‌इस‌पቚ करण‌मे‌14-4-2023oसे‌कारागार‌मे‌वनरू दቍ ‌है,oइसजलए‌आवेदक‌को‌जमानत पर‌छोड़ ‌वदया‌जाय। ववदान‌अपर‌शासकीय‌अजधवकሹ ा‌ने‌आवेदक‌के ‌ववदान‌अजधवकሹ ा‌के ‌तकरኘ ‌का‌पቚ बल‌ववरोध करते‌हहए‌तकर ‌पቚ स् तुत‌वकया‌वक‌आवेदक‌दारा‌काररत‌अपराध‌संजेय‌एवं‌गम् भीर‌पቚ कृ वत‌का ह,ै oइसजलए‌आवेदक‌को‌जमानत‌पर‌न‌छोड़ ा‌जाय। आवेदक‌के ‌ववदान‌अजधवकሹ ा‌के ‌तकरኘ ‌के ‌पररपቚ ेकኚ य‌मे‌पतावली‌पर‌उपलब् ध‌सारवान‌तथ् योሻ एवं‌पररबस् थवतयोሻ ‌का‌समगቇ ‌रू प‌से‌अवलोकन‌करने‌के ‌बाद ,oसबूतोሻ ‌की‌पቚ कृ वत‌और‌वकसी भी‌ठोस‌ववरोधात् मक‌सामगቇ ी‌की‌अनुपबस् थवत‌एवं‌उपलब् ध‌सामगቇ ी‌से‌छेड़ छाड़ ‌की‌संभावना न‌होने‌के ‌तथ् य‌को‌देखि ते‌हहए‌मेरी‌राय‌मे‌आवेदक‌को‌जमानत‌पर‌मुकሹ ‌करने‌का‌उपयकሹु आधार‌ह।ै अतः‌वाद‌के ‌गणु ‌दोष‌पर‌वबना‌कोई‌वटप् पणी‌वकए‌हहए‌आवेदक‌को‌उपरोकሹ ‌ववणरत‌अपराध मे‌संबंजधत‌न् यायालय‌की‌सन् तुवषኌ ‌पर‌व् यवकሹ गत‌बंध-पत‌एवं‌अजधक‌धनरावश‌के ‌दो‌स् थानीय पቚ वतभू‌पቚ स् तुत‌करने‌पर‌वनम् नजलजखि त‌शतरኘ ‌के ‌साथ‌जमानत‌पर‌छोड़ ‌वदया‌जाय।ं 1-oआवेदक‌वववेचना‌या‌परीकण‌के ‌दौरान‌अवभयोजन‌साकኚ योሻ ‌के ‌साथ‌छेड़ छाड़ ‌नहीሻ करगे ा। 2-आववेदक अवभयकोजन समावकयोሻ व पलवड़र / वशकमायरकरमार कको ቄኌरमायवेरमा / धमकमायवेरमा नहीሻ। 3-आववेदक न्यमायमालय कवे आदवेशोሻ कमा पमालन करवेरमा, वह परलकर कवे ददौरमान वबनमा ककोई अनमावश्यक स्ररन जलए वनयर वरजर पर न्यमायमालय मम उपणस्रर हकोरमा ररमा परलकर मम ईममानदमारल सवे सहयकोर करवेरमा। 4-आववेदक जममानर पर ररहमा हकोनवे कवे बमाद जममानर ककी स्वरसंतरमा कमा दमुरूपयकोर नहीሻ करवेरमा और वकसल भल अपरमाजधक रवरववजध मम जल्቎ नहीሻ हकोरमा न ककोई अपरमाजधक कमृत्य करवेरमा। 5-आववेदक ्ቚत्यक यमा अ्ቚत्यक रूप सवे ममामलवे कवे रथ्योሻ सवे पररवचर वकसल भल व्यव्ሹ यमा पमुजलस अजधकमाररयोሻ कको ककोई ्ቚलकोभन यमा धमककी नहीሻ दवेरमा न हल उनसवे ककोई वमायदमा करवेरमा, जजसकवे कमारर उन्हम न्यमायमालय मम रथ्योሻ कको उजमारर करनवे सवे ववरर रहनमा पड़वे। उपरको्ሹ शरቖኘसं मम सवे वकसल कवे उलसंघन कवे ममामलवे मम, परलकर न्यमायमालय आववेदक ककी जममानर वनयममानमुसमार र्ቌ करनवे कको स्वरसंत हहै।" It is then contended that though the recovery of purse of the deceased was made on the pointing of applicant-Ajeet Kumar Yati. However, the aforesaid circumstance by itself is not so sufficient so as to infer the guilt of applicant in the crime in question. The said recovery was made from near the place of occurrence. There is no independent witnesses of recovery. The said recovery is implanted. As such, the same cannot be relied upon. Attention of the Court was invited by learned counsel for applicant to the confessional statement of the named and charge sheeted accused, which is on record at page 32 of the paper book, pertaining to applicant Ajeet Kumar Yati. With reference to above, he submits that as per confessional statement of the aforesaid named and charge sheeted accused, the role of present applicants is distinguishable from named and charge sheeted co-accused. Since similarly situate and circumstanced co-auccsed Ram Naresh Rai has already been enlarged on bail, therefore present applicants are also liable to be enlarged on bail on the ground of parity. Even otherwise, applicants have criminal history to their credit, but the same have sufficiently been explained. Applicant-Ajeet Kumar Yati is in jail since 17.5.2023. Applicant-Deepak Rai is in jail since 14.4.2023. Applicant-Vivek Rai @ Ravan Rai is in jail since

15.4.2023. As such, they have undergone sufficient period of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. However, upto this stage, no such, circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. and the learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore they do not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants,, accusation made coupled with the fact as per confessional statement of named/charge sheeted accused, the fatal blow on the body of deceased was struck by co-accused Ravi Rai though complicity of other charge sheeted accused is established as per confessional statement of the named and charge sheeted accused, but the role of other co-accused is distinguishable from Ravi Rai, similarly situate and circumstances named and charge sheeted co-accused Ram Naresh Rai has already been enlarged on bail, the learned A.G.A. and learned counsel for first informant could not point any such distinguishing feature in the case of present applicant so as to distinguish his case from other co-accused so as to deny bail to present applicants, explained criminal history of applicants, period of incarceration undergone, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized, yet inspite 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, the recovery of purse of deceased from co-accused Ajeet Kumar Yati is unreliable inasmuch as same was made from after seven months of occurrence, there being no independent witness of the recovery, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present applications for bail, but without making any comment on the merits of the case, the applicant has made out a case for bail. Accordingly the bail applications are allowed. Let the applicants-Ajeet Kumar Yati, Deepak Rai and Vivek Rai @ Ravan Rai 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 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. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 11.12.2023/Arshad High Court of Judicature at Allahabad