Rambha Pandey v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43728 of 2023 Applicant :- Rambha Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kumar Singh Counsel for Opposite Party :- G.A.,Ubaidur Rehman Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 47031 of 2023 Applicant :- Adarsh Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kumar Singh Counsel for Opposite Party :- G.A.,Ubaidur Rehman Hon'ble Rajeev Misra,J.

¶1Heard Mr. Gaurav Kumar Singh the learned counsel for applicants-Rambha Pandey and Adarsh Pandey, the learned A.G.A. for State and Mr. Ubaidur Rehman, the learned counsel representing first informant.

¶2Perused the record.

¶3These applications for bail have been filed by applicants-Rambha Pandey and Adarsh Pandey seeking their enlargement on bail in Case Crime No. 165 of 2023, under Sections 323, 504, 506, 304 I.P.C. Police Station-Kuber Esthan, District-Kushinagar during the pendency of trial.

¶4Record shows that in respect of an incident which is alleged to have occurred on 24.06.2023, a delayed F.I.R. dated 27.06.2023 was lodged by first informant Krishan Kant Pandey (son of the deceased) and was registered as Case Crime No. 165 of 2023, under Sections 323, 504, 506, 304 I.P.C. Police Station-Kuber Esthan, District-Kushinagar. In the aforesaid F.I.R., three persons namely-Santosh Pandey, Rambha Pandey and Adarsh Pandey have been nominated as named accused.

¶5The gravamen of the allegations made in the F.I.R. is to the effect that a scuffle took place in between the parties with regard to placement of mud in the filed. Subsequently, named accused are alleged to have united and armed with Danda and Shovel (Kudal) assauled the father of the first informant. The sister and mother of the first informant intervened but Adarsh Pandey assaulted the father of the first informant with a brick of his head on account of which he fell on the ground. Ultimately the father of the first informant died.

¶6After aforementioned F.I.R. was lodged, the inquest of the deceased (Panchayatnama) was conducted. In the opinion of the witnesses of inquest (Panch Witnesses) the nature of death of the deceased was categorized as homicidal and the cause of death of the deceased was said to be injury sustained by the deceased in the scuffle that took place between the parties. Subsequent to above, 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 deceased is hemorrhage and shock due to ante-mortem injury. The autopsy surgeon found following ante-mortem injuries on the body of deceased:

¶1Two stitched wounds over above left ear.

¶2Contused swelling 11 cm x 6 cm.

¶7Investigating Officer, thereafter recorded the statements of the first informant-Krishna Kant Pandey(son of the deceased) and other witnesses namely Chama Pandey and Shyama Pandey, mother and sister of the first informant. All the three witnesses in their statements under Section 161 Cr.P.C. have narrated a common story that the deceased was assaulted by a brick on his head by named accused Adarsh Pandey. Subsequently, the named accused were arrested. On the pointing of applicant Adarsh Pandey the brick that was used in the commission of crime in question was recovered and was having blood stain. The kudal that was used by co-accused Santosh Pandey was also recovered. However, the same did not have any blood stain. On the basis of above and other material collected by the Investigating Officer during course of investigation, he came to the conclusion that complicity of all the named accused is established in the crime in question. Accordingly he submitted the charge sheet dated 17.09.2023, whereby, named accused have been charge sheeted under Sections under Sections 323, 504, 506, 304 I.P.C.

¶8At the very outset, the learned counsel for applicants contends that named and charge sheeted accused Santosh Pandey has already enlarged on bail vide order dated 18.08.2023 passed in Criminal Misc. Bail Application No. 36273 of 2023 (Santosh Pandey Vs. State of U.P.). For ready reference the same is reproduced hereinunder: "1.

वररममनदमणणणकपककररजममनरपमररनमपत,

आववदकससरतषपमणणवयककओरसव

मम०अ०स०165/2023,

अनररर धमरम304/ 323 पम०दस०वव०,

रमनमकमबवरसरमन, जजलम

कमशशनररममजममनरपरममककरनवहवरमपसरमरवकयमरयमहह।

2.

आववदककवववदमनअजधवकम,

पररवमदशकवववदमनअजधवकमएवसववदमनअपरशमसककय

अजधवकमकतसमनमररमपतमवलशकमपररशशलनवकयम।

3.

वमदकवरथयइसपकमरहहवकवमदशममकदममदमरमवदनमसक24.06.2023

कतलरभर11.30 ए.

एमपरउसनवपटशदमरससरतषपमणणवयसव.

समरवशपमणणवयअपनशजमशनपरशशचमलयकम

वनममर कवजलएरडमखतदरहवरव,

रढवकममलवमवमटशआवदमजददररकवदमरमउसकवजमशनमम

णमलमजमनवलरम,

जजसपरवहऔरउसकववपरमससजयपमणणवयनवउससवकहमवकआपकक

जमशनआरवहहउसपरवमटशणमजलयव।इसबमरपरससनरतषपमणणवयआरबबदलमहतरयवररम

उसककपतनशरमभमपमणणवयउनकमलडकमआदशरपमणणवयसभशएकरमयहतकरअपनव-अपनव

हमरममजलएणणणमकमदमलसवउसकववपरमससजयपमणणवयकतबमरशररशकवसवममरनवलरव।उसकक

ममसशयमममपमणणवय,

उसककबहनकममपमणणवयनवआकरबशचबचमवकरनवलरवरभशआदशर

पमणणवयअपनवहमरममजलयवईटसवउसकववपरमससजयपमणणवयकवसरममजतरसवममरमजजससव

उसकववपरमममवरररहतकरवहहवरररयव।

4.

आववदककवववदमनअजधवकमनवरकरपसरमरवकयमवकआववदककतइसपकररममरलर

एवसफजरढसरसवझदठमफससमयमरयमहह,

उसनवकजररअपरमधकमरररनहहवकयमहह,

उनकमयह

भशकहनमहहवकपरमसदचनमररपतटरकवअवलतकनसवयहवववदरहतरमहहवकआववदक, ममरक,

वउसकवपररवमरकवलतरआपसममपटशदमरहहऔरदतनरकमघरपमस-

पमसहह।आववदकअपनश

जमशनममशशचमलयबनमनवकवजलएवदनमसक24.06.2023

कतसमयलरभर11.30 ए.

एमपर

रडमखतदरहवरववकनरमइसरडवककवमटशवअनयवमटशकतममकदममवमदशकवजमशनपरणमल

रहवरवजजससवयहलतरमनमवकयवरतससरतषपमणणवयआरबबदलमहतरयमवउनकवपररवमरकव

लतरउनककपतनशरमभमपमणणवयउनकमलडकमआदशरपमणणवयसभशएकरमयहतकरअपनव-

अपनवहमसरममजलएणणणमकमदमललवकरससजयपमणणवयकतबमरशररशकवसवममरनवलरव, रभश

आदशरपमणणवयअपनवहमरममजलयवईटसव,

ससजयपमणणवयकवसरममजतरसवममरमजजससवससरतष

पमणणवयवहहममवरररहतकरवरररयव।पतसटममटरमररपतटरकवअनमसमरममरककवशरशरपर

दतचतटम

¶1Two stitched wound as left side temporal region 7cm above left ear.

¶2Contused swelling 11 CM 6CM over left perital region.

ररमममरकककममतयमकम

कमररAntimortam injury

आयमहह।Haemrage and Shock Due to

5.

उकपरमसदचनमररपतटरएवसपतसटममटरमररपतटरकवअवलतकनमररयहसपषहतजमरमहहवक

ररमकजररघटनमकमरररकरनवककममखयभदवमकमआदशरपमणणवयककहह।आववदकवनदरषहह

ररमवहइसपकररममवद०28.06.2023

सवकमरमरमरममवनरदहहइसजलएआववदककत

जममनरपररतडवदयमजमय।

6.

पररवमदशकवववदमनअजधवकमएवसववदमनअपरशमसककयअजधवकमनवआववदककवववदमन

अजधवकमकवरकरकमपबलववरतधकररवहहएरकरपसरमरवकयमवकआववदकदमरमकमररर

अपरमधससजवयएवसरसमभशरपकमवरकमहह,

इसजलएआववदककतजममनरपरनरतडमजमयव।

7.

आववदककवववदमनअजधवकमकवरकरकवपररपवकयममपतमवलशपरउपलबधसमरवमनरथयर

एवसपररणसरवरयरकमसमगरपसवअवलतकनकरनवकवबमद,

सबदररककपकमवरऔरवकसशभश

ठतसववरतधमतमकसममगशककअनमपणसरवरएवसउपलबधसममगशसवरवडरमडककससभमवनमन

हतनवकवरथयकतदवखरवहहएमवरशरमयममआववदककतजममनरपरममककरनवकमउपयमक

आधमरहह।

8.

अरतबमदकवरमरदतषपरवबनमकतईवटपपरशवकएहहएआववदककतउपरतकववरर अपरमध

ममससबसजधरनयमयमलयककसनरमवषपरवयवकररबसध-

पतएवसअजधकधनरमवशकवदतसरमनशय

पवरभदपसरमरकरनवपरवनमनजलजखरशररसकवसमरजममनरपररतडवदयमजमय।

1.

आववदकववववचनमयमपरशकरकवदशरमनअवभयतजनसमकयरकवसमररवडरमडनहहकरवरम।

2.

आववदकअवभयतजनसमवकयरवपशवडरम/

वशकमयरकरमरकतणरमयवरम/

धमकमयवरमनहह।

3.

आववदकनयमयमलयकवआदवशरकमपमलनकरवरम,

वहपरशकरकवदशरमनवबनमकतई

अनमवशयकसररन,

जलएवनयरवरजरपरनयमयमलयमम,

उपणसररहतरमररमपरशकरमम

ईममनदमररसवसहयतरकरवरम।

4.

आववदकजममनरपरररहमहतनवकवबमदजममनरककसवरसतरमकमदमरपयतरनहशकरवरम

औरवकसशभशअपरमजधकरवरववजधममजलपनहहहतरमनकतईअपरमजधककमतयकरवरम।

5.

आववदकपतयकयमअपतयकरपसवमममलवकवरथयरसवपररवचरवकसशभशवयवकयम

पमजलसअजधकमररयरकतकतईपलतभनयमधमककनहहदवरमनहशउनसवकतईवमयदमकरवरम,

जजसकवकमररउनहमनयमयमलयममरथयरकतउजमररकरनवसवववरररहनमपडव

उपरतकशररसममसववकसशकवउलसघनकवमममलवमम,

परशकरनयमयमलयआववदकककजममनर

वनयममनमसमररदकरनवकतसवरसतहह।"

¶9According to the learned counsel for applicants the case of the present applicants are similar and identical to the aforementioned charge sheeted/bailed out co-accused. There is no such distinguishing feature on the basis of which the case of present applicants could be so distinguished from the aforementioned bailed out co-accused so as to deny him bail. He therefore contends that in view of above and for the facts and reasons recorded in the bail order of aforementioned co-accused, applicants are also liable to be enlarged on bail on the ground of parity.

¶10It is then contended that applicant Rambha Pandey is a lady and therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C.

¶11According to the learned counsel for applicants the occurrence giving rise to the present criminal proceedings had occurred at the spur of the moment on account of grave and sudden provocation. Consequently, the same is covered under the fourth exception to Section 300 I.P.C. As such, the criminality committed by the applicants shall be culpable homicide not mounting to murder. It is thus urged by the learned counsel for applicants that since no fire arm or deadly weapon of assault was used by the applicants in the crime in question, therefore, the case in hand is not likely to travel beyond 304 part-II.

¶12Even otherwise, applicants are of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicant-Rambha Pandey is in jail since 23.08.2023. Applicant-Adarsh Pandey is in jail since 28.06.2023. As such, they have undergone substantial period 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 applicants stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicants during the pendency of trial. On the above premise, he submits 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.

¶13Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicants are named and charge sheeted accused, therefore, no indulgence be granted by this Court in favour of applicants. According to the learned A.G.A. the weapon of assault used by named and charge sheeted co-accused i.e the applicant Adarsh Pandey was recovered on the pointing of applicant Adarsh Pandey himself. The injury suffered by the deceased on his head is due to assault made by the applicant Adarsh Pandeyl. As such, the case of applicant-Adarsh Pandey is clearly distinguishable from the other co-accused. Since, the criminality committed by the named and charge sheeted accused is joint and common, as such, the same is incapable of being separated or segregated. As such, no exception can be carved out in the case of present applicants. On the above conspectus, it is urged no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

¶14Having heard, the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant upon perusal of record, evidence, nature and gravity of offence, complicity of accused and accusation made coupled with the fact that the occurrence had taken place at the spur of the moment on account of grave and sudden provocation, as such, the offence complained of is covered under the four exception to Section 300 I.P.C., since no fire arm or deadly weapon of assault was used by the applicants Adarsh Pandey in the commission of crime, therefore, the offence complained of shall prima facie not be travel beyond 304 part II I.P.C., the other co-accused Santosh Pandey has already been enlarged on bail, applicant Rambha Pandey is a lady, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., the clean antecedents of applicants, the period of incarceration undergone, the police report under Section 173 (2) Cr.P.C i.e. charge-sheet has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicants during the pendency of trial, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present applications for bail, but without making any comments on the merits of the case, the applicants have made out a case for bail.

¶15Accordingly, the bail applications are allowed.

¶16Let the applicants-Rambha Pandey and Adarsh Pandey, be released on bail in the aforesaid case crime number on their 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 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 APPLICANTS 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 APPLICANTS MISUSE 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 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 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.

¶17However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 12.12.2023 Imtiyaz High Court of Judicature at Allahabad