Sheshram v. State of U.P. Thru. Prin. Secy. Home Deptt. Lko. and Another

Court No. - 15 Case :- CRIMINAL APPEAL No. - 689 of 2023 Appellant :- Sheshram Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And Another Counsel for Appellant :- Dinesh Kumar Shukla,Ajey Singh,Piyush Kumar Singh Counsel for Respondent :- G.A.,Surya Kumar,Vinod Kumar Hon'ble Shamim Ahmed,J.

¶1The case is taken up in the revised call.

¶2Heard Sri Ajey Singh, the learned counsel for the appellant as well as Sri Vinay Kumar Shahi, the learned A.G.A. for the State-opposite party No. 1 and perused the entire record.

¶3Learned A.G.A. has filed counter affidavit and in reply thereto learned counsel for the appellant has filed rejoinder affidavit.

¶4Learned counsel for the appellant has already served written notice to the learned counsel for the opposite party No.2 Sri Vinod Kumar, but he is not present. Vide order dated 31.07.2023 granted ten days and no more time to file counter affidavit. Thereafter, the case was listed thrice, but no counter affidavit has been filed till today. It appears that opposite party No. 2 is not interested to file any counter affidavit.

¶5In the above circumstances, as the matter pertains to bail this Court has no option but to proceed for final arguments to decide the present appeal.

¶6The present criminal appeal under Section 14-A (2) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 21.02.2023 passed by the Court of Spcial Judge, SC/ST Act Bahraich in Bail Application No. 307/12-A/2023 (Sheshram Vs. State of U.P.) arising out of Case Crime No. 487/2022, under Section 306 I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Vishesharganj, District Bahraich, whereby the bail application of the appellant has been rejected.

¶7Learned counsel for the appellant further submits that the appellant is innocent and has been falsely implicated in the present case, due to enmity and village party bandi, no ingredient of Section 306 I.P.C. is attracted in the case of the present appellant.

¶8Learned counsel for the appellant further submits that the F.I.R. was lodged by the father of the deceased against the appellant and one Prem Verma (brother of the appellant) on 12.12.2022 in respect of the incident dated 10.12.2022, but no reason for delay was given.

¶9Learned counsel for the appellant further submits that from the plain reading of the F.I.R. it transpires that no any allegation was made against the appellant only it has been stated that the appellant and co-accused Prem Verma has taken the son of the complainant and they humiliated him, due to this reason the son of the complainant has died and the dead body of the deceased is lying near the railway track.

¶10Learned counsel for the appellant further submits that what was the ground and how the appellant humiliated the son of the complainant was not mentioned in the F.I.R..The complainant in the statement recorded under Section 161 Cr.P.C., repeated the same version of the F.I.R. and no reason or motive have been assigned and how Section 306 I.P.C. is attracted in the case of the present appellant.

¶11Learned counsel for the appellant further submits that at the time of the inquest, the family members of the complainant were present, but at that time they did not make any allegation against the appellant.

¶12Learned counsel for the appellant further submits post-mortem of the deceased was conducted and in the post-mortem report the cause of death of the deceased is asphyxia as a result of ante mortem hanging. Except one ligature mark of size 31.0 c.m. x 2.0 c.m. there is no other injury found on the person of the deceased. Submission is that oblique ligature mark shows that the deceased committed suicide and it is a case of hanging. The deceased committed suicide, the reason best known to the deceased or the family members. There is no role of the present appellant. In support of his argument learned counsel for the appellant placed reliance upon the extract of Modi's Medical Jurisprudence, wherein definition of hanging has been described and as per the postmortem report of the deceased it is identical to the definition of hanging given in Modi's Jurisprudence.

¶13Learned counsel for the appellant further submits that after investigation, the Investigating Officer dropped the name of the co-accused (real brother of the appellant), Prem Verma and submitted charge-sheet only against the appellant, without any basis and in a cursory manner without considering the material on record, which falsify the prosecution story. Even though the Investigating Officer has not considered this fact that ingredient of Section 306 I.P.C. is not attracted against the appellant.

¶14Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 27.01.2023, who has no previous criminal history, and in case the appellant is enlarged on bail, he shall not misuse the liberty of bail and he shall also fully cooperate with the trial. He has further submitted that there is no possibility of the appellant to intimidate or pressurize the witnesses or any other persons acquainted with the facts of the present case.

¶15For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order 21.02.2023 passed by the Court of Spcial Judge, SC/ST Act Bahraich in Bail Application No. 307/12-A/2023 (Sheshram Vs. State of U.P.) arising out of Case Crime No. 487/2022, under Section 306 I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Vishesharganj, District Bahraich deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

¶16Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 27.01.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶17Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that there is active participation of accused/appellant in the crime. Therefore, the accused/ appellant is not entitled to be enlarged on bail and the instant criminal appeal deserves to be dismissed, but did not dispute this fact that no reason in the F.I.R. or in the statement of the complainant recorded under Section 161 Cr.P.C. has been assigned, how Section 306 I.P.C. is attracted in the case of the present appellant, except this fact that the appellant along with his brother (co-accused) have taken away the deceased with them.

¶18After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there appears force in the argument of learned counsel for the appellant that the complainant in the statement recorded under Section 161 Cr.P.C., repeated the same version of the F.I.R. and no reason or motive have been assigned; there also appears force in the argument of learned counsel for the appellant that it is not a case of hanging, the deceased committed suicide, the reason best known to the deceased or the family members and as per the extract of Modi's Medical Jurisprudence, and as per the postmortem report of the deceased it is identical to the definition of hanging given in Modi's Jurisprudence; there also appears force in the argument of learned counsel for the appellant that the Investigating Officer dropped the name of the co-accused (real brother of the appellant), Prem Verma and submitted charge-sheet only against the appellant, which falsify the prosecution story further considering the fact that appellant is in jail since

27.01.2023 and has now by done a substantial period of detention and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record, the impugned order passed by the trial court is liable to be set aside.

¶19Accordingly, the appeal is allowed. Consequently, the order dated 21.02.2023 passed by the Court of Spcial Judge, SC/ST Act Bahraich in Bail Application No. 307/12-A/2023 (Sheshram Vs. State of U.P.) arising out of Case Crime No. 487/2022, under Section 306 I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Vishesharganj, District Bahraich is hereby reversed and set aside.

¶20Let the appellant, Sheshram, be enlarged on bail in Case Crime No. 487/2022, under Section 306 I.P.C. and Section 3 (2) (v) SC/ST Act, Police Station Vishesharganj, District Bahraich with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter-33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant 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 him in accordance with law.

¶21It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

¶22The trial court is also directed to expedite the trial of the aforesaid case, within a period of one year from today, by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment. Order Date :- 27.10.2023 Arvind High Court of Judicature at Allahabad, Lucknow Bench