Raheesh v. State of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Home, Lko

Court No. - 15 Case :- CRIMINAL APPEAL No. - 2968 of 2023 Appellant :- Raheesh Respondent :- State Of U.P. Thru. Prin. Secy. /Addl. Chief Secy. Home, Lko. Counsel for Appellant :- Shantanu Sharma,Anshuman Sharma,Athar Ali,Razia Khan,Shri Prakash Counsel for Respondent :- G.A.,Arshad Jameel,Mohd. Salman,Mukhtar Ahamad Hon'ble Shamim Ahmed,J.

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

¶2Heard Ms Razia Khan, the learned counsel for the appellant as well as Sri Ajay Kumar Agnihotri, the learned A.G.A. for the State-opposite party No. 2 and perused the entire record.

¶3As per the office report dated 18.12.2023 notice has already been served upon the opposite party No. 2. and names of Sri Arshad Jameel, Sri Mohd. Salman, Sri Mukhtar Ahamad have been shown in the cause list, but till today counter affidavit has been filed on her behalf.

¶4Today when the case is taken up, neither any counsel has appeared on behalf of opposite party No. 2, even though names of Sri Arshad Jameel, Sri Mohd. Salman, Sri Mukhtar Ahamad have been shown in the cause list nor counter affidavit has been filed on her behalf. It appears that the 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.

¶6Learned A.G.A. has filed counter affidavit and in reply thereto learned counsel for the appellant has filed rejoinder affidavit today in Court. The same is taken on record.

¶7The 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 03.08.2023 passed by the Court of Special Judge (SC/ST Act)/Additional District and Session Judge, Court No.2, Unnao in Session Trial No. 1031/2022 (State Vs. Raheesh) arising out of Case Crime No. 169/2022, under Sections 323, 504, 506, 304 I.P.C. and Section 3(2) (v) SC/ST Act, Police Station Soharamau, District Unnao, whereby the bail application of the appellant has been rejected.

¶8Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present case with his son only due to enmity and village party bandi. No such incident took place, as alleged by the prosecution. The entire prosecution story is false and fabricated.

¶9Learned counsel for the appellant further submits that as per version of the F.I.R., which was lodged by the daughter-in-law of the deceased stating therein that his father-in-law was coming after job, he stopped at market to purchase some item, then the son of appellant, namely, Aneesh pushed him and her father-in-law fallen down and thereafter the appellant along with his son started beating to father-in-law of the complainant by kicks and fists as well as lathi and danda, due to this he received injuries and was taken to hospital.

¶10Learned counsel for the appellant further submits that as per the version of the F.I.R., the date of incident is 24.07.2022, where the F.I.R. was lodged on 27.07.2022, after a delay of three days and no plausible explanation has been given.

¶11Learned counsel for the appellant further submits that after seven months of the alleged incident, the father-in-law of the complainant died and as per post-mortem report the cause of death is mayocardial infarcation, which reflects heart problem, thus it is clear that the cause of death of the father-in-law of the complainant was not of the beating by the appellant and his son.

¶12Learned counsel for the appellant further submits that from the date of the alleged incident till the date of death of the father-in-law of the complainant, the Investigating Officer had not recorded the statement of the father-in-law of the complainant, which also falsify the entire prosecution story.

¶13Learned counsel for the appellant further submits that accused/appellant is languishing in jail since 29.07.2022, 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.

¶14Several 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 29.07.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

¶15For the aforesaid reasons, learned counsel for the appellant submits that the instant criminal appeal deserves to be allowed and the order dated 03.08.2023 passed by the Court of Special Judge (SC/ST Act)/Additional District and Session Judge, Court No.2, Unnao in Session Trial No. 1031/2022 (State Vs. Raheesh) arising out of Case Crime No. 169/2022, under Sections 323, 504, 506, 304 I.P.C. and Section 3(2) (v) SC/ST Act, Police Station Soharamau, District Unnao deserves to be set aside and consequently, the accused/appellant deserves to be enlarged on bail during pendency of the trial.

¶16Per 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. However, he has been unable to dispute the other factual submissions advanced by the learned counsel for the accused/appellant.

¶17After 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 after seven months of the alleged incident, the father-in-law of the complainant died and as per post-mortem report the cause of death is mayo-cardial infarcation, which reflects heart problem, thus it is clear that the cause of death of the father-in-law of the complainant was not of the beating by the appellant and his son and there also appears force in the argument of learned counsel for the appellant that from the date of the alleged incident till the date of death of the father-in-law of the complainant, the Investigating Officer had not recorded the statement of the father-in-law of the complainant, which also falsify the entire prosecution story and the family members further considering the fact that appellant is in jail since 29.07.2022 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.

¶18Accordingly, the appeal is allowed. Consequently, the order dated 03.08.2023 passed by the Court of Special Judge (SC/ST Act)/ Additional District and Session Judge, Court No.2, Unnao in Session Trial No. 1031/2022 (State Vs. Raheesh) arising out of Case Crime No. 169/2022, under Sections 323, 504, 506, 304 I.P.C. and Section 3(2) (v) SC/ST Act, Police Station Soharamau, District Unnao is hereby reversed and set aside.

¶19Let the appellant, Raheesh, be enlarged on bail in Case Crime No. 169/2022, under Sections 323, 504, 506, 304 I.P.C. and Section 3(2) (v) SC/ST Act, Police Station Soharamau, District Unnao 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.

¶20It 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.

¶21The 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 :- 19.12.2023 Arvind High Court of Judicature at Allahabad, Lucknow Bench