Vishnu Kumar Alias Prashant Raghav v. State of U.P

Order Date :- 4.8.2023 "

¶5Learned counsel for applicant contends that though the applicant is a charge sheeted accused and facing trial before court below by way of aforementioned Sessions Trial yet in view of the facts as have now emerged on record, applicant is liable to be enlarged on bail during the pendency of trial. To buttress his submission, the learned counsel for applicant submits that co-accused Ashwani has already been enlarged on bail vide order dated 03.12.2024 passed by this Court in Criminal Misc. Bail Application NO.34819 of 2024 (Ashwani Vs. State of U.P.). For ready reference the order dated 03.12.2024 is reproduced herein-below: "1. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Pradeep Kumar Rai, learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the material brought on record.

¶2The present third bail application has been filed on behalf of the applicant in Case Crime No. 202 of 2022, under Sections -376-D, 302, 342, 147 I.P.C., Police Station - Attrauli, District - Aligarh with the prayer to enlarge the applicant on bail. The first and second bail application of applicant were rejected by this Court vide orders dated 10.05.2023 and

11.07.2024.

¶3According to prosecution version, on 13.05.2022 at around 03:00-04:00 AM, while informant and his wife were not at the home, co-accused Kukku @ Abhimanyu Raghav and Kaka @ Laxman, along with two unknown persons, came at the house of informant and extending threats, they took his daughter into a room and ravished her. They have threatened the son of informant, who was present there. When the daughter of informant has threatened that she would tell the incident to her family members, the said accused persons committed her murder by hanging. It appears that during investigation, on the basis of postmortem report, it was found that deceased has died due to asphyxia as a result of ante-mortem hanging. During investigation, it was found that applicant/accused Ashwani was also involved in the incident.

¶4Learned Senior Advocate appearing for applicant-accused submitted that applicant-accused is resident of the same village but he was not named in the first information report. The F.I.R. was lodged against co-accused Kukku @ Abhimanyu Raghav, Kaka @ Laxman and two unknown persons. The involvement of applicant and co-accused Sarthak Kumar was shown during investigation through statement of witness Abhay Chauhan @ Arpit, which was recorded on a belated stage. Further, as per postmortem report of deceased hyoid bone of deceased has been shown intact and cause of death of deceased is asphyxia due to ante-mortem hanging and thus, it is clear that deceased has committed suicide and no case under Section ? 302 I.P.C. is made out.

¶5It is further submitted that second bail application of applicant was rejected by this Court vide order dated 11.07.2024 and it was observed that after statement of alleged eye witness Abhay Chauhan @ Arpit is recorded before the trial court, the applicant would be at liberty to file a fresh bail application. Now, the statement of said witness Abhay Singh @ Arpit has been recorded before the trial court. Learned Senior Counsel has referred statement of said witness as recorded before the trial court and pointed out that in his cross examination, he has stated that when his father has gone to lodge the report he has also gone with his father but applicant-accused was not named. In his cross examination said witness has admitted that accused persons are residents of his village and he knows them well. Referring to facts of the matter and statement of P.W.-2, it was submitted that if the applicant-accused might have been involved in the incident, he must have been named in the first information report. It was further submitted that material witnesses have already been examined and thus, there is no possibility of tampering with evidence. Further, similarly placed co-accused Sarthak Kumar has already been granted bail by the co-ordinate Bench of this Court vide order dated 05.04.2023, passed in Criminal Misc. Bail Application No. 12333 of 2023. Lastly, it was submitted that applicant is languishing in jail since 01.07.2022, having no criminal history, and that trial of the case would take sufficient long time.

¶6Learned A.G.A. and learned counsel for informant have opposed the prayer of bail and submitted that P.W.-2 Abhay Chauhan @ Arpit is eye witness of the incident and in his statement before the trial court, he has supported the prosecution version and clearly stated that applicant-accused was involved in the incident. The medical examination report of deceased as well as clothes of deceased clearly indicate that deceased was ravished by the accused persons including applicant. The first and second bail application of applicant-accused have already been rejected and no new substantial ground is made out to entertain this third bail application.

¶7I have considered the rival submissions and perused the record.

¶8Persual of record shows that applicant is not named in the first information report, which was lodged against co-accused Kukku @ Abhimanyu Raghav, Kaka @ Laxman and two unknown persons and it was alleged that all the four miscreants came at the house of informant and forcibly took the deceased into room and ravished her and the said incident was witnessed by the brother of deceased. Thereafter deceased was hanged by the accused persons. In postmortem report, cause of death of deceased has been shown ante-mortem hanging. It was shown that applicant-accused is resident of same village but he was not named in the F.I.R.. First and second bail application of applicant-accused were rejected but thereafter statement of eye witness Abhay Chauhan @ Arpit has been recorded before the trial court. Co-accused Sarthak Kumar, who was also not named in the first information report, has been granted bail by the co-ordinate Bench of this Court vide order dated 05.04.2023. Though, bail application of co-accused Vishnu Kumar @ Prashant Raghav and Lakshman Raghav @ Kaka has been rejected by the co-ordinate Bench of this Court but both the said co-accused persons were named in the first information report. The applicant is stated in jail since 01.07.2022, having no criminal history.

¶9Considering the submissions of learned counsel for the parties, nature of accusations, period of custody and all attending facts and circumstances of the case, without expressing any opinion on the merits, a case for bail is made out. Hence, the present third bail application is hereby allowed.

¶10Let the applicant - Ashwani involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions:

(i) The applicant will not tamper with the evidence during trial.

(ii) The applicant will not pressurize/intimidate the prosecution witnesses.

(iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

(iv) The applicant will not try to contact, threat or otherwise influence the complainant or any of the witness of the case.

¶11In case of breach of any of the above condition, the court concerned shall be at liberty to cancel the bail of applicant, in accordance with law. Order Date :- 3.12.2024 "

¶6According to the learned counsel for applicant, case of present applicant is similar and identical to that of co-accused Ashwani, who has already been enlarged on bail. There does not exist any such distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned co-accused Ashwani so as to deny him bail. On the above premise, the learned counsel for applicant contends that in view of above and for the facts and reasons recorded in the bail order of co-accused Ashwani, applicant is also liable to be enlarged on bail on the ground of parity.

¶7Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 31.05.2022. As such, he has undergone almost three years of incarceration. The police report-charge-sheet in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, upto this stage, no such incriminating circumstance has emerged on the record necessitating the custodial arrest of applicant during the pendency of trial. The trial of applicant has already commenced before court below. Upto this stage, two prosecution witnesses namely P.W.-1, first informant, Anup Kumar and P.W.-2, Abhay @ Abhi Chauhan (eye witness) have deposed before court below. On the above premise, the learned counsel for applicant submits that once the statements of the first informant and eye witness have already been recorded then in that eventuality it cannot be said that if the applicant is enlarged on bail, he shall either terrorize the witnesses or shall hamper the course of trial. He therefore contends that no justifiable ground now exists to prolong the custodial arrest of applicant. On the above premise, it is thus urged that applicant is liable to be enlarged on bail during the pendency of aforementioned Sessions Trial. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

¶8Per contra, the learned A.G.A. for State-opposite party-1 has vehemently opposed the present repeat application for bail. He submits that since applicant is a charge sheeted accused and also facing trial before court below, therefore, he does not deserve any indulgence by this Court. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

¶9Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant and coupled with the fact though applicant is a charge sheeted accused and facing trial before court below, the first bail application of applicant was rejected by this Court vide order dated 04.08.2023, however this court finds that subsequent to above order dated 04.08.2023, co-accused Ashwani has already been enlarged on bail by this Court vide order dated 03.12.2024, the case of present applicant is similar and identical to that of co-accused Ashwani, learned A.G.A. could not point out any such distinguishing feature in the case of present applicant so as to distinguish the case of present applicant from bailed out co-accused Ashwani so as to deny him bail, in view of above and for the facts and reasons recorded in the bail order of co-accused Ashwani, the applicant is liable to be enlarged on bail on the ground of parity, the police report/charge sheet in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet in spite of above, no such incriminating circumstance could be pointed out by learned the A.G.A. from the record necessitating the custodial arrest of applicant during the pendency of trial, upto this stage the statement of two prosecution witnesses namely P.W.-1, first informant, Anup Kumar and P.W.-2, Abhay @ Abhi Chauhan (eye witness) have already been recorded before court below, in view of above, in case applicant is enlarged on bail then in that eventuality it cannot be said that if the applicant is enlarged on bail, he shall either terrorize the witnesses or shall hamper the course of trial, no good reason could be assigned by the learned A.G.A. necessitating the custodial arrest of applicant, applicant is liable to enlarged on bail in view of the law laid down by Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 6), the clean antecedents of applicant, the period of incarceration undergone, therefore irrespective of the objections raised by learned A.G.A. in opposition to present repeat application for bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

¶10Accordingly, present repeat application for bail is allowed.

¶11Let the applicant-Vishnu Kumar Alias Prashant Raghav involved in aforesaid case crime number be released on bail on his 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) Applicant will not tamper with prosecution evidence.

(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) Applicant will not indulge in any unlawful activities.

(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

¶12The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison. Order Date :- 30.5.2025 YK High Court of Judicature at Allahabad

Court No. - 70 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1356 of 2025 Applicant :- Vishnu Kumar Alias Prashant Raghav Opposite Party :- State of U.P. Counsel for Applicant :- Anil Kumar,Pramod Kumar,Sanjay Kumar Rajbhar,Yashpal Yadav Counsel for Opposite Party :- G.A.,G.S. Chauhan Hon'ble Rajeev Misra,J. 1. Heard Mr. Pramod Kumar, the learned counsel for applicant and the learned A.G.A. for State-opposite paty-1. 2. Perused the record. 3. This repeat application for bail has been filed by applicant- Vishnu Kumar Alias Prashant Raghav seeking his enlargement on bail in Case Crime No. 202 of 2023 under Sections 147, 342, 302, 376D I.P.C., Police Station-Gandhi Park, Atrauli, District-Aligarh, during the pendency of trial i.e. Sessions Trial No. 2077 of 2022 (State Vs. Kukkoo @ Abhimanyu and others) under Sections 147, 342, 302, 376D I.P.C., Police Station-Gandhi Park, Atrauli, District-Aligarh, now pending in the Court of Additional Sessions Judge, F.T.C., Court No. 1, Aligarh. 4. The first bail application of applicant was rejected by this Court by a detailed order dated 04.08. 2023 passed in Criminal Misc. Bail Application No. 12386 of 2023 (Vishnu Kumar @ Prashant Raghav Vs. State of U.P.) alongwith connected bail application. For ready reference, the order dated 04.08.2023 is reproduced herein-under: "1. Heard Mr. Yashpal Yadav, Advocate, holding brief of Mr. Uljhan Singh Bind, the learned counsel for applicants, the learned A.G.A. for State and Mr. G.S. Chauhan, the learned counsel representing first informant. 2. Two supplementary affidavits filed by the learned counsel for applicants and the photo copy of the F.S.L. report and the order dated 10.05.2023 placed by the learned counsel representing first informant before Court, are taken on record. 3. Perused the record. 4. These applications for bail have been filed by applicants-Vishnu Kumar @ Prashant Raghav and Lakshman Raghav @ Kaka seeking their enlargement on bail in Case Crime No. 202 of 2022, under Sections 147, 342, 302, 376D, Police Station-Atrouli, District-Aligarh during the pendency of trial. 5. Record shows that in respect of an incident, which is alleged to have occurred on 13.05.2022, a written report was submitted by the father of the victim. The same is on record at page 46 of the supplementary affidavit dated 31.07.2023 filed by the learned counsel for applicants. As per the said written report, no person has been nominated in the crime in question. Subsequently, on 14.05.2022, another written report was submitted by the father of the deceased. The same is on record at page 43 of the aforementioned supplementary affidavit. In the aforesaid written report, 2 persons namely Vishnu Kumar @ Prashant Raghav and Lakshman Raghav @ Kaka have been nominated as named accused along with 2 other unknown persons. 6. On the basis of aforementioned written report dated 14.05.2022, an FIR dated 15.05.2022 came to be registered as Case Crime No. 202 of 2022, under Sections 342, 302, 376D, Police Station-Atrouli, District-Aligarh. In the aforesaid FIR, 2 persons namely Kukku @ Abhimanu Raghav, Kaka @ Lakshman i.e. applicant herein have been nominated as named accused whereas an unknown person has also been arraigned as an accused. 7. The gravamen of the allegations made in the FIR to the effect that as per the disclosure made by Abhay, minor son of the first informant. Named accused along with others are guilty of committing rape upon the daughter of the first informant and thereafter having cause the murder of the victim. 8. It is apposite to mention here that after submission of the first written report dated 13.05.2022, the inquest (Panchayatnama) of the deceased was conducted on 13.05.2022 itself. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as suicidal. Thereafter, post mortem of the body of deceased was conducted. The Autopsy Surgeon, who conducted the autopsy of the body of deceased, opined t