Vivek @ Lav Kush v. State of U.P. Thru. Prin. Secy. Home Lko

Court No. - 27 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14654 of 2023 Applicant :- Vivek @ Lav Kush Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Ratnesh Kant Agnihotri,Harshita Awasthi Counsel for Opposite Party :- G.A. Hon'ble Brij Raj Singh,J.

¶1Heard Sri Ratnesh Kant Agnihotri, learned counsel for the applicant and Mohd. Ashif Khan, learned A.G.A. for the State.

¶2The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No. 314 of 2023 under section 304 IPC, Police Station Gudamba, District Lucknow.

¶3It has been submitted by learned counsel for the applicant that FIR has been lodged by the brother of the deceased mentioning therein that on 09.08.2023 at about

11.00 p.m. in the night near Behta Petrol Pump his brother deceased-Ram Pal was beaten by the applicant alongwith other three accused due to which he received serious injuries and thereafter his body was left near the shop of Mangal Rathor. He has also mentioned that he got an information in the morning and deceased was taken to Trauma Centre by other people. He further mentioned in the FIR that accused had threatened on phone to his Bhabhi that he had killed the deceased.

¶4Learned counsel for the applicant has submitted that FIR indicates that the complainant is not an eye witness of the incident. It has been submitted by learned counsel for the applicant that inquest report was done on

13.08.2023 and in the case diary of Investigating officer, it is mentioned that it is an accidental death.Thereafter, postmortem has been conducted which indicates that four injuries have been caused on person of deceased. Learned counsel for the applicant has submitted that on the confessional statement of all the accused persons, Banka has been recovered and they have confessed that the co-accused Ajay Rawat assaulted the deceased with Banka and other co-accused including the applicant caught hold the deceased.

¶5Learned counsel for the applicant has submitted that the confessional statements recorded in the custody of the police have no evidentiary value under section 25 of the Evidence Act. He has submitted that if dimension of injury no.1 is seen then it is clear that same cannot be caused by Banka because it is 18 cm. long injury. Learned counsel for the applicant has submitted that statements of independent witnesses, namely,Saurabh, Ritesh and Ram Pher indicate that they were also not an eye witness rather they have stated that they heard that the applicant and other co-accused might have killed the deceased. It has been submitted by learned counsel for the applicant that no clinching or direct evidence is found against the applicant.The applicant has no previous criminal history and there is no possibility of fleeing away from the judicial process or tempering with the witnesses and in case, the applicant is enlarged on bail, he shall not misuse the liberty of bail. The applicant is in jail since

14.08.2023.

¶6On the other hand, learned A.G.A. has opposed the prayer for bail and has submitted that in the confessional statement all the accused have confessed their guilt and they have admitted that they assaulted the deceased, therefore, the bail application of the applicant is liable to be rejected.

¶7Without expressing any opinion on the merits of the case and after hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that there is no eye witness of the incident, the argument that on the basis of confessional statement of all the accused and the applicant have been implicated which is not admissible under section 25 of the Evidence Act and the argument that injury caused by Banka is not corroborating with the postmortem report, therefore, I am of the opinion that the applicant is entitled to be released on bail.

¶8Let the applicant, namely, Vivek @ Lav Kush, be released on bail in the above case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with the following conditions :-

(i) The applicant 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.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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.

(iv) The applicant shall remain present, in person, 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 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 him in accordance with law. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The Trial Court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything in this order. Order Date :- 15.12.2023 dk/ High Court of Judicature at Allahabad, Lucknow Bench