Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Rajan Srivastava, learned counsel for the applicant, Sri Ankur Sharma, learned counsel for the first informant, Ms. Manju Thakur, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Abhishek Sharma @ Chanchal Pandit seeking enlargement on bail during trial in connection with Case Crime No.272 of 2019, under Sections 147, 148, 302, 34 IPC, registered at P.S. Sasanigate, District- Aligarh.
Learned Senior Counsel argued that the first information report in the present matter was got registered by Smt. Lily Sharma on 17.6.2019 at about 02:06 a.m. for an occurrence alleged to have taken place on 16.6.2019 at 10:00 p.m. regarding the murder of her husband Saurabh Sharma reciting therein that there was a dispute going on between her husband Saurabh Sharma and his family members namely Abhishek Sharma/the present applicant, Asim Sharma/the brother of the deceased and Chandra Shekhar Sharma/the father of the deceased in regard to the partition of a factory which was being refused to be shared with her husband by the accused persons and there had been some scuffle between them on some previous occasions. It is then stated by her that on 16.6.2019 in from of their house in Peepal Wali Gali, Jaiganj, Aligarh a fight took place between the accused persons wherein she names five accused persons including the applicant who are Abhishek Sharma (the brother of the deceased and the present applicant), Asim Sharma (the brother of the deceased), Dimple Saxena @ Gaurav (a neighbour), Dushyant Sharma @ Kaka (Chacha of the deceased) and Chandra Shekhar Sharma (father of the deceased) in the first information report and it is further alleged therein that all accused persons caught hold of her husband and made him to fall down on the ground on which the applicant Abhishek Sharma assaulted him with a rod of a fan on his head as a result of which he received injuries. It is further alleged that there was a lot of bleeding at the said place. It is further stated that her husband was taken to Medical College, Aligarh by persons of the locality but he succumbed to the injuries. It is thus concluded that all the named accused persons have murdered her husband.
Learned Senior Counsel argued that the post-mortem report, a copy of which is annexed as Annexure-3 to the affidavit is in sharp contrast with the version as stated in the first information report as the doctor conducting the same has found as many as 15 injuries on the body of the deceased, out of which the injuries no.5, 6, 7, 8 & 9 are incised wounds and the remaining injuries are lacerated wounds but there is no explanation whatsoever in the first information report regarding any assault upon the deceased which could cause the incised wounds. Further learned Senior Counsel has placed the statement of the first informant recorded under Section 161 Cr.P.C., a copy of which is annexed as Annexure-4 to the affidavit and while placing the said statement has stressed upon the fact that she has subsequently improved her version as that mentioned in the first information report by stating that Chandra Shekhar Sharma and Dushyant Sharma were armed with iron rod, she has added the name of one person Vipin Sharma and has stated that he was armed with scissors, Asim Sharma and Dimple Sharma were alleged to have been armed with knife and Abhishek, the present applicant was stated to be armed with rod of the pedestal fan and it was stated that all the said persons had thrown her husband on the ground and had assaulted him. It is stated that even in the said statement she has for the first time shown her brother Pawan Pathak as an eye witness to the incident alongwith her but his name is conspicuously missing in the first information report as an eye witness. Further learned Senior Counsel has placed the statement of Pawan Pathak, a copy of which is annexed as Annexure-5 and has argued that he has not added anything further to the statement as given by Smt. Lily Sharma, the informant, a copy of which is annexed as Annexure-4 apart from the fact that he has also claimed himself as an eyewitness alongwith her.
Learned Senior Counsel then has placed the site plan of the place of occurrence, a copy of which is annexed as Annexure-7 and has pointed out that the place of occurrence was inspected and then site plan was prepared in the presence of the first informant as has been noted by the Investigating Officer in the case diary, a copy of which is annexed as Annexure-6 wherein in the concluding two lines, he has stated that he is inspecting the place of occurrence in the presence of the first informant Smt. Lily Sharma on her assistance.
While placing the site plan, learned Senior Counsel has drawn the attention of the Court to the noting of the Investigating Officer at serial no.2 which relates to Point-B marked by him in which he has stated to have recovered a scissor. It is further pointed out that at serial no.3 in the same from Point-C, the Investigation Officer has recovered two pieces of Lathi and has specifically stated them to be bloodstained. Further it is stated that at serial no.4 at Point-D, the Investigating Officer has mentioned that an iron rod of stand of a fan which is also bloodstained has been recovered.
Learned Senior Counsel has then argued that the presence of the first informant and her brother Pawan Pathak is highly doubtful as insofar as it relates to Pawan Pathak, he is a resident of Ram Lila Maidan of Hathras and his presence is even not stated in the first information report but all of a sudden the first informant in her statement recorded under Section 161 Cr.P.C. has claimed him to be an eyewitness for the first time.
While describing the presence of the first informant Smt. Lily Sharma, learned Senior Counsel has argued that even her presence at the place of occurrence is totally ruled out from the first version of the incident as reported by her in the first information because the manner of assault is totally in variance with the injuries as received and noted by the doctor in the post-mortem report. The case as set up in the first information report was as simple as that of the applicant hitting the head of the deceased with the rod of a pedestal fan and the role of other accused persons were of throwing the deceased on the ground but later on in her statement which appears to have been recorded after seeing the post mortem report and getting advice, thereupon, specific roles and different weapons and more so those types of other weapons have been introduced as weapons of assault upon the deceased which would correspond to the injuries received.
Learned Senior Counsel has then placed the memo of the hospital where the deceased was taken and was declared dead, a copy of which is annexed as Annexure-SA1 to the Supplementary Affidavit and has argued that in the column of the person who has brought him to the hospital, it is mentioned as "father" which goes to show that the deceased was taken to the hospital by his father and in the said memo it is stated that he was brought dead and thus the implication of the father and the other family members is in great doubt as the said conduct would be wholly unnatural. Further learned Senior Counsel has placed a recovery memo being Annexure-9 to the affidavit in which it is stated that a knife has been recovered on the pointing out of the applicant which has bloodstains on it which are dry. It is argued that the said recovery is of no consequence as the same could not be connected with the present incident. Further learned Senior Counsel has argued that the applicant is reported to have been involved in criminal activity even prior to the present incident. He has drawn the attention of the Court to paragraphs 25 to 37 of the affidavit and has proceeded to argue that all the said cases were false cases in which the applicant was falsely implicated as is evident from the recital in the said paragraphs that he was either discharged, acquitted or the proceedings under Gunda Act and 107/116 Cr.P.C. have lived their life. It is thus argued that in no matter even the investigation or trial is pending and the applicant has not been convicted in any matter but as a matter of fact has been acquitted or discharged in all the matters.
In the end learned Senior Counsel has strenuously challenged the presence of the first informant and her brother Pawan Pathak at the place of occurrence. Insofar as the recovery of the bloodstained lathis from the place of occurrence are concerned and the same is also noted in the site plan, learned Senior Counsel has argued that in the first information report and even in the statements recorded under Section 161 Cr.P.C. of the first informant and her brother Pawan Pathak, there is no allegation of the use of lathi upon the deceased. It is while concluding the argument thus argued that entire prosecution case is a falsity as stated. It is further argued that the applicant is in jail since 27.6.2019.
Per contra, learned counsel for the first informant and learned A.G.A. vehemently opposed the prayer for bail and argued that the applicant is a habitual criminal as is itself apparent from the fact that he was involved in as many as 13 cases prior to the present incident. It is argued that the applicant is the brother of the deceased. It is further argued that insofar as the applicant is concerned, his role is consistent throughout the prosecution version as initially being brought forward in the first information report and later on in the statement of the first informant and her brother Pawan Pathak recorded under Section 161 Cr.P.C. It is argued that even the instrument as assault as mentioned by the said two persons and has been disclosed in the first informantion report and said to have been used by the applicant was recovered from the place of occurrence by the Investigating Officer which is evidence from the site plan itself. It is argued that there had been a dispute in the family regarding partition of property and that was the reason for committing the incident as the other family members were not sharing the property with the deceased and as such had jointly eliminated him.
Addressing on the memo of the hospital annexed as Annexure-SA1 to the supplementary affidavit, learned counsels have argued that the said documents appears to be a manipulated document is in the column of "brought by" it is only stated "father" without giving any other description therein. It is argued that the said description is too vague to be construed as the co-accused Chandra Shekhar Sharma taking the deceased to the hospital as in the first information report itself, the first informant has stated that her husband has been taken to the Medical College by persons of the locality. It is argued that the said noting in the memo of the hospital is a manipulation just to give the case a different colour. It is further argued that the prosecution case is true and correct. It is further argued that the first informant was a lady and seeing her husband being badly beaten and butchered by the accused persons it was very natural for her to not mention each and every detail in the first information report as the same is not an encyclopedia of the occurrence. It is then argued that at the very first instance while giving her statement to the Investigating Officer under Section 161 Cr.P.C. the first informant has disclosed the entire prosecution case which she and her brother had witnessed.
While replying to the argument of the learned counsel for the first informant and the learned A.G.A., the learned Senior Counsel has not added anything further but has stated that co-accused persons Chandra Shekhar Sharma has been granted bail vide order dated 11.9.2019 passed in Criminal Misc. Bail Application No.35193 of 2019, Dushyant Sharma has been granted bail vide order dated 13.11.2019 passed in Criminal Misc. Bail Application No.48647 of 2019, Vipin Sharma has been granted bail vide order dated 27.1.2020 passed in Criminal Misc. Bail Application No.3955 of 2020 and Dimple Saxena has been granted bail vide order dated 24.2.2020 passed in Criminal Misc. Bail Application No.4794 of 2020 and the applicant is also entitled to parity with the accused persons who have been granted bail.
After having perused the material on record and after hearing learned counsel for the parties, it is clear that the prosecution version is only specified to the applicant using an iron rod of a pedestal fan and assaulting the deceased by it, the post-mortem report shows 15 injuries out of which there are injuries which are not explained in the first information report which have been subsequently explained in the statement of the first informant and her brother as being that of different weapons altogether whose existence is not even mentioned in the first information report. The presence of the first informant thus appears to be in doubt. The presence of Pawan Pathak, the brother of the first informant at the time of occurrence has not been referred to in the first information report and it was only in her statement under Section 161 Cr.P.C. that his presence was for the first time disclosed. He is a resident of different district and no reason whatsoever as being present at the place of occurrence has been stated. The different weapons used have been recovered by the Investigating Officer from the place of occurrence for which a note is made in the site plan and in all probabilities the injuries received by the deceased find corroboration from the use of the said weapons. The criminal history of the applicant though is 13 in number but all the cases have ended and the applicant has either been discharged or acquitted in the same.
Considering the totality of the case in particular, nature of evidence available on record and without further any comments on merit, I am inclined to release the applicant on bail.
Let the applicant Abhishek Sharma @ Chanchal Pandit, be released on bail in the aforesaid case crime number on 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 applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The 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) The applicant shall file an undertaking to the effect that he 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.
iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his pres
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ence 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, in accordance with law, under section 174-A I.P.C. V) The applicant 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 him in accordance with law and the trial court may proceed against him under Section 229-A IPC. vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. The 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 and send the applicant to prison. The bail application is allowed. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. The computer generated copy of such order shall be self attested by the counsel of the party concerned. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.