SHYAMDHAR PANDEY Vs. STATE OF U P

JUDGEMENT

(1.) These are two bail applications numbering as Criminal Misc. Bail Application No. 24182 of 2015 and Criminal Misc. Bail Application No. 6712 of 2016 which are connected with each other and arise out of common transaction. Counsels for both sides are present, who have requested the Court to take up both the matters today itself as the files of both the cases have been sent by the office and are available in the Court. This request was made in the background of the fact that the Criminal Misc. Bail Application No. 24182 of 2015 was sent to the Court earlier on 20.8.2016 but the matter was posted for some other date after four weeks. Submission of counsels appearing for both sides is that as both the files are available in the Court and the rival counsels are also present then there is no point of not hearing the other bail application. In view of common request made by the counsels for both sides, both these bail applications are being heard together today and are being decided by common order.

(2.) Counter affidavits filed today by learned A.G.A. in both cases are taken on record.

(3.) Submission of counsels for the applicants is that in this matter there has been a background of an unusual highhandedness and misconduct displayed by some persons belonging to the scheduled caste community of the village in question. In that connection applications had also been moved before this incident and as a result of which the administrative authorities had intervened and the anti-social elements were successfully managed but even thereafter miscreants of that community kept displaying their misdemeanor and misbehaviour. Counsels have also drawn the attention of the Court to Annexure No.27 and 28 in order to indicate the legal protest that was made against the miscreants and the eventual compromise that had taken place in that regard. Submission is that on the day of incident the situation worsened and there was a mutual clash between two rival groups. During this clash none of the accused persons displayed or had any criminal intention to cause anybody's death or to cause any serious injury to anybody of the other side but unfortunately one person who received a single injury on the head eventually died as a result of infection which he caught. The other persons said to have incurred injuries also received only trifling minor injuries. But the other side has tried to exaggerate the nature of offence and has resorted to a blanket implication of 24 persons in the incident by making omnibus allegations against all of them. Counsel has taken the Court to the medical examination reports of all the alleged 14 injured persons the perusal of which is sufficient to demonstrate the trivial nature of the injuries incurred by all of them. Medical reports show that the alleged victims namely Manju Nisha, Sukhdei and Beliram did not have any visible injury and only complained of pain; the alleged victims namely Komal, Sushila, Nandini and Chintamani are said to have incurred just a single contusion each on their persons; the alleged victims namely Nyasa and Lalchand had incurred a single lacerated wound each on their persons, the alleged victim namely Pooja had received only a single abrasion and the alleged victims Manoj Kumar and Ram Raj had incurred one lacerated wound and one contusion each on their persons. It was also pointed out that all these alleged injuries were obviously simple in nature and none of them was found to be grievous. Attention has been further drawn to the post-mortem report of the deceased which also indicates the presence of just a single healed wound on the head. Much emphasis has been laid by the counsel on the fact that during autopsy no grievous injury was found on the body of the deceased and even the healed wound on the head did not have any corresponding fracture in any of the underlying scull bones and was in fact an injury of simple nature. Submission is that it was so unfortunate that the otherwise simple wound appears to have caught some infection and septicaemia developed, as a result of which the deceased eventually died. It has been emphasized by counsel that the death of the deceased was reported by the doctor to have been caused as a result of cardiorespiratory arrest due to septicaemia. Argument is that the medical examinations of the victims and the post-mortem report of the deceased are sufficient to demonstrate that it is not a case in which either the victim or the deceased may be said to have been made the target by any of the accused persons with the intention to cause any serious harm to them. There was hardly any repetition of blows and the absence of any fracture caused to any of the victims is also a conclusive proof of the fact that whosoever hit them, hit them lightly and not with force. Further argument is that there is generalized vague allegation about the accused having been armed with lathi, danda and ganasa, but this is also so clear from the medical examination reports that neither the deceased nor any of the alleged victims received any sharp-edged wound. In fact the number of assailants is said to be 24 but total number of injuries incurred by the victims is much less than the number of accused which sufficiently demonstrates that many of the accused did not participate in the occurrence at all. The prosecution evidence is woefully lacking with regard to any specification about the weapons and it is not known at all as to which accused was having which weapon or as to which accused hit which victim. Even the single blow caused to the deceased which unfortunately caught the infection and proved fatal cannot be attributed to any particular accused. Submission is that in a case of this nature where blunt weapons like lathi or danda has been used so lightly that not even a single fracture or grievous injury has been caused to any of the victims, it will be unjust to attribute any intention of causing death to any of the accused. Further submission is that it will also be very unreasonable to saddle all the accused persons with vicarious liability of having shared any common murderous intention or object. Even the death of the deceased was also an unfortunate outcome or development which most probably took place because of lack of adequate medical care or because of medical negligence. It is further submitted that the allegations of setting the huts on fire is only a malicious attempt on the part of prosecution to exaggerate the offence and deliberately lend a complexion of caste and communal clash to the incident. Submission is that had there been any pre-planned deliberate serious intention to cause any serious harm then the nature of injuries caused to the alleged victims would have been wholly different. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant 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 applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. It has also been submitted that the applicants Shyamdhar Pandey and Vikash Kumar Pandey are languishing in jail since 11.4.2015 and 24.6.2015 respectively and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. It has also been pointed out that the applicants do not have any previous criminal history.