# Moti v. State of U.P

- **Citation:** (2020) 8 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-28
- **Case number:** Crl. Misc. Ist Bail Application No. 14299 of 2020
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/moti-v-state-of-u-p-46039
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 439 - Bail - Nonexplanantion of Injuries - There is no
forensic
report
that
the
recovered
weapon was used in the commission of
the present offence - It's effect - Period
of detention already undergone, the
unlikelihood of early conclusion of trial
and the absence of any convincing
material to indicate the possibility of
tampering
with
the
evidence
-
Considered - Held, the applicant may be
enlarged on bail. (Para 11, 12 and 15)
Bail Application allowed (E-1)
Cases relied on :-

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES
finds its consistency throughout the
complaint and in the statements of the
complainant, the victim and Brijpal. The
victim was also assaulted by the accused
persons and had received injuries on her
head and leg which was bleeding, the
same is mentioned in the complaint. The
victim was given medical treatment for
her injuries. She has specifically stated
that she was subjected to rape by the
applicant and co-accused, Ranjeet. The
prosecution in the present case has been
consistent so far as the allegation of rape
is concerned. There is no suppression of
any material fact which would go to the
extent of extending any benefit to the
accused at this stage as argued to be
extended under Section 114(g) of the
Indian Evidence Act. The offence is
serious in nature of committing rape of a
minor girl aged about 15 years as stated
in the complaint and the statements of the
prosecutrix recorded under Section 202
Cr.P.C.

11. Looking to the facts and
circumstances of the case, nature of
evidence and gravity of offence, I do not
find it a fit case bail, hence, the bail
application is rejected.

12. It is clarified that any
observation as made in this order is only
for the purpose of deciding this bail
application and shall have no effect in the
proceeding of trial.

13. The party shall file computer
generated
copy
of
such
order
downloaded from the official website of
High Court Allahabad.

14. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.
15. 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.
----------
(2020)08ILR A288
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.07.2020

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Crl. Misc. Ist Bail Application No. 14299 of
2020

Moti ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Vivek Kumar Singh, Sri Mayank Yadav

Counsel for the Opposite Party:
A.G.A., Sri Anjani Kumar Raghuvanshi

A. Criminal Law - Criminal Procedure
Code, 1973 - Section 439 - Bail - Nonexplanantion of Injuries - There is no
forensic
report
that
the
recovered
weapon was used in the commission of
the present offence - It's effect - Period
of detention already undergone, the
unlikelihood of early conclusion of trial
and the absence of any convincing
material to indicate the possibility of
tampering
with
the
evidence
-
Considered - Held, the applicant may be
enlarged on bail. (Para 11, 12 and 15)
Bail Application allowed (E-1)
Cases relied on :-
1. Lakshmi Singh & ors. Vs St. of Bihar,
(1976) 4 SCC 394.
2. Bashishth Singh & anr. Vs St. of Bihar,
(2002)
10
SCC
384.
8 All. Moti Vs. State of U.P.
289
3. Bhagwan Sahai & anr. Vs St. of Rajasthan,
(2016) 13 SCC 171.
4. State of Gujarat Vs Bai Fatima (1975) 2
SCC 7
5. Special Leave to Appeal (Criminal) No.
9957 of 2019; Vikas Kumar Vs Akshay & anr.
decided by Supreme Court on 28.02.2020

(Delivered by Hon'ble Samit Gopal, J.)

1. Heard Sri Vivek Kumar Singh,
learned counsel for the applicant, Sri
Anjani Kumar Raghuvanshi, learned
counsel for the first informant and Sri
Manu Raj Singh, learned A.G.A. for the
State and perused the material on record.

2. This bail application under
Section 439 of Code of Criminal
Procedure
has
been
filed
by
the
applicant, Moti, seeking enlargement on
bail during trial in connection with Case
Crime No. 375 of 2019, under Sections
147, 148, 149, 307, 302 and 506 I.P.C.,
registered at Police Station Modinagar,
District Ghaziabad.

3. The prosecution case as unfolded
in the First Information Report lodged on
17.04.2019 at about 21:54 hrs at P.S.
Modinagar, District Ghaziabad by Vikas
son of Bijendra Singh for an incident
which took place on 17.04.2019 at about
5.00 p.m. is that labours were sowing the
crop of sugar-cane his field and when he
was returning from his field in the
evening then at about 5.00 p.m. he saw
the accused persons namely Akshay and
Sunny both sons of Jitendra, Ankit and
Moti both sons of Satbir and Bhanu
entering in the house of Vicky Tyagi and
then he heard the sound of firing from
inside the house to which he entered in
the house of Vicky Tyagi and saw all the
accused
person
brandishing
their
weapons,
threatening
of
dire
consequences and running away from
there.
He
saw
his
brother-in-law,
Dipendra @ Dippan having received
several gun shot injuries and Pratham
who was inside the house has also
received firearm injury in his leg. The
first informant is then said to have taken
Dipendra @ Dippan and Pratham to
Jeevan Hospital for their medical aid
wherein
Dipendra
@
Dippan
was
declared dead. It is stated that the
accused persons are persons of criminal
intent
and
bad
nature
and
they
collectively fired indiscriminately upon
Dipendra @ Dippan and murdered him.
It is further stated that Ruby and Vinod
and various other persons have seen the
incident. It is then stated that apart from
the named accused persons other persons
may also have joined them in the said
assault. He then states that he has come
to the police station from the hospital for
getting the FIR registered. The said
application for getting the FIR registered
is scribed by one Praveen son of Madan
Singh.

4. Dipendra @ Dippan died and the
doctor
conducting
the
postmortem
examination opined that the death is as a
result of shock and haemorrhage due to
ante mortem gun shot injury.

5. Learned counsel for the applicant
argued that the present case is a cross
case. He has drawn the attention of the
Court to Annexure- 6 of the affidavit in
support of the bail application which is
the FIR of Case Crime No. 0511 of 2019,
under Sections 147, 148, 149, 307, 504,
506 I.P.C., registered at P.S. Modinagar,
District Ghaziabad on 26.05.2019 at
about 23:54 hrs for an incident which
290 INDIAN LAW REPORTS ALLAHABAD SERIES
took
place
from
15.04.2019
to
17.04.2019 at 17:00 hrs (5.00 p.m.) by
Smt. Nisha wife of Jitendra against
Vikas, Vicky Tyagi, Sappu Gujar,
Pratham and 03 unknown persons. The
said FIR has been registered on the basis
of an application dated 06.05.2019
moved under Section 156 (3) Cr.P.C. in
the Court of the Additional Chief Judicial
Magistrate, Court No. 5, Ghaziabad
which was numbered as Application No.
338 / ACJM-5 of 2019 (Smt. Nisha vs.
Vikas and others). He argued that from
the side of the applicant in the cross case
Ankit and Akshay received injuries. He
has drawn the attention of the Court to
paragraph 13 of the affidavit and argued
that Ankit received firearm injury on his
leg. The said injury has been placed from
Annexure- 7 to the affidavit in which the
doctor noted that the said gun shot injury
has an exit also. Further Annexure- 7 & 8
to
the
affidavit
are
the
medical
examination report and the further
documents of treatment including the
discharge summary of Akshay and
learned counsel has argued that initially
Akshay was taken to CHC, Ghaziabad
where he was medically examined on
17.04.2019 at 6:10 a.m., from there was
referred to surgeon for management of
his injury. A copy of the medical
examination report and reference slip is
at page 62 of the paperbook. The injuries
as found by the doctor are as follows:-

(1) 1 cm x 1 cm wound over
the Rt. side of Abdomen 3 cm above
from umbilicus. Around wound burning
present. Tatooing not present.

(2) 1 cm x 1 cm wound over Rt.
side Abdomen 3 cm below from
umbilicus.
Around
wound
burning
present. Tatooing not present.

The opinion of the said doctor
was " Both injury? Gun shot.

6. Subsequently, he was taken to
District Combined Hospital, Ghaziabad
from where he was after giving treatment
referred to higher centre / Guru Teg
Bahadur
Hospital,
New
Delhi
for
management. The said reference slip is at
page 66 of the paperbook. In pursuance
thereof, Akshay was admitted in GTB,
Hospital, New Delhi on 27.04.2019 and
continued to be under treatment there. In
between
Akshay
was
admitted
to
Yashoda
Super-speciality
Hospital,
Ghazaiabad on 17.04.2019 where he was
operated upon for exploring and removal
of bullet from his sacrum which was
done
on
21.04.2019.
The
relevant
documents of treatment at Yashoda
Hospital & Research Centre are annexed
from page 70-76 of the paperbook. From
the documents pertaining to the treatment
of Akshay at GTB, Hospital, New Delhi
annexed at page 67, 68, 78 and 79 of the
paperbook, it is argued that injuries as
received by Akshay were grievous in
nature for which he struggled a lot and it
was a matter of luck that he survived and
his medical examination which started
from CHC, Ghaziabad continued up to
AIIMS, New Delhi. It is argued that in
the cross case the police initially
submitted a final report which has been
rejected by the court concerned and the
matter
has
been
sent
for
further
investigation which is still continuing.

7. Learned counsel for the applicant
argued that the injuries as received by
Ankit and Akshay are firearm injuries
which cannot be self-inflicted. It is
further argued that the prosecution has
concealed the factum regarding the
injuries as received by Ankit and Akshay
8 All. Moti Vs. State of U.P.
291
and is totally silent about the same which
goes to show that the prosecution version
of the occurrence is doubtful and the
prosecution has suppressed the genesis
and the origin of the occurrence and has
not come out with clean hands. It is
further argued that the falsity of the case
of the prosecution as per the FIR itself
becomes under doubt from the fact that
the first informant states that all the
accused persons who were stated to be
five in number including Akshay and
Ankit the injured persons from the side
of the accused left the place of
occurrence brandishing their weapons,
extending threats to life and they ran
away. It is further argued that nature of
injuries injuries received by Akshay it
was not possible for him to run away
from the place of occurrence and the said
injuries and his receiving injury could not
have got unnoticed by the first informant.
Learned counsel then places reliance
upon the following judgements:-

1. Lakshmi Singh and Others
vs. State of Bihar: (1976) 4 SCC 394.

2. Bashishth Singh and Another
vs. State of Bihar: (2002) 10 SCC 384.

3. Bhagwan Sahai and Another
vs. State of Rajasthan: (2016) 13 SCC
171.

8. In the case of Lakshmi Singh
(supra) while placing reliance upon the
case of State of Gujarat vs. Bai Fatima
(1975) 2 SCC 7, the Apex Court held that
in a situation when the prosecution fails
to explain the injuries on the person of an
accused, depending on the facts of each
case, any of the three results may follow:

"(1) That the accused had
inflicted the injuries on the members of
the prosecution party in exercise of the
right of self-defence.

(2) It makes the prosecution
version of the occurrence doubtful and
the charge against the accused cannot
be held to have been proved beyond
reasonable doubt.

(3) It does not affect the
prosecution case at all."

9. It was held in the case of
Lakshmi Singh (supra) in paragraph 12 :-

"It seems to us that in a murder
case, the non-explanation of the injuries
sustained by the accused at about the
time of the occurrence or in the course
of altercation is a very important
circumstance from which the court can
draw the following inferences:

(1) that the prosecution has
suppressed the genesis and the origin of
the occurrence and has thus not
presented the true version;

(2) that the witnesses who have
denied the presence of the injuries on
the person of the accused are lying on a
most material point and therefore their
evidence is unreliable;

(3) that in case there is a
defence version which explains the
injuries on the person of the accused it
is rendered probable so as to throw
doubt on the prosecution case."

10. Further, while relying upon the
case of Bashishth Singh (supra), learned
counsel for the applicant argued that the
Apex Court has granted bail to the
accused persons in the said case on the
ground that a counter case was built on
the strength of the First Information
Report lodged by one of the accused and
had granted bail to them.
292 INDIAN LAW REPORTS ALLAHABAD SERIES

11. While, relying on the case of
Bhagwan Sahai (supra), learned counsel
for the applicant argued that even in the
said case the judgement of Lakshmi
Singh and Others vs. State of Bihar has
been referred and relied upon and the
information
non-explanation
of
the
injuries on the side of accused by the
prosecution has been considered by the
Apex Court and an adverse inference has
been drawn against the prosecution for
not offering any explanation much less a
plausible one.

12. Learned counsel has then placed
before
the
Court
an
order
dated
30.09.2019 passed by a co-ordinate
Bench of this Court in Criminal Misc.
Bail Application No. 39170 of 2019
(Akshay vs. State U.P.) and has stated
that co-accused, Akshay has been granted
bail by the said order. Further, learned
counsel has placed before this Court the
order dated 28.02.2020 passed by the
Apex Court in Special Leave to Appeal
(Criminal) No. 9957 of 2019 (Vikas
Kumar vs. Akshay and Another) and has
stated that the said Special Leave to
Appeal was preferred against the order
dated 30.09.2019 granting bail to Akshay
and the same has been dismissed by the
said order. It is argued that there is a
recovery shown against the applicant for
which Case Crime No. 447 of 2019,
under Section 25/27 Arms Act has been
registered but it is alleged that the said
recovery was a planted recovery by the
police on 10.05.2019 and there is no
forensic report that the recovered weapon
was used in the commission of the
present offence. Paragraph 24 and 30 of
the affidavit have been placed for the
said argument. It is further stated that
charge-sheet in the present case has been
submitted on 20.04.2019. In the last,
while placing reliance on paragraph 24 of
the affidavit again learned counsel has
stated that the applicant has no criminal
antecedents and the case under the Arms
Act as of now is against the applicant as
the sole case which relates to the alleged
recovery of weapon said to have been
used in the present case. It is stated that
the applicant is in jail since 01.05.2019.

13. Learned counsel for the first
informant opposed the prayer for bail and
argued that filing of the application under
Section 156 (3) Cr.P.C. by Smt. Nisha
was an afterthought just in order to create
a defence in the present matter. It is
argued that the Apex Court, while
dismissing the Special Leave to Appeal
has categorically clarified that the same
is being refused to be entertained in the
peculiar circumstances of the said case. It
is thus argued that the applicant is not
entitled to the claim of parity with coaccused. Further it is argued that the
present case is a case in which one
person received injury and died and there
is one injured and the injuries received
by Ankit and Akshay are self-inflicted
injuries.

14. Learned A.G.A. also opposed
the prayer for bail but could not dispute
the aforesaid arguments of the learned
counsel for the applicant. Even the fact
that the applicant has no criminal history
and the other case under the Arms Act is
after the present matter could not be
disputed.

15. After 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,
the
8 All. Moti Vs. State of U.P.
293
unlikelihood of early conclusion of trial
and also the absence of any convincing
material to indicate the possibility of
tampering with the evidence, this Court
is of the view that the applicant may be
enlarged on bail.

16. Let the applicant, Moti, 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 presence
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 174A 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.

17. 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.

18. The bail application is allowed.

19. The party shall file computer
generated
copy
of
such
order
downloaded from the official website of
High Court Allahabad.

20. The computer generated copy of
such order shall be self attested by the
counsel of the party concerned.

21.
The
concerned
Court/Authority/Official shall verify the
authenticity of such computerized copy of the
294 INDIAN LAW REPORTS ALLAHABAD SERIES
order from the official website of High Court
Allahabad and shall make a declaration of
such verification in writing.
----------
(2020)08ILR A294
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.07.2020

BEFORE

THE HON'BLE ANIL KUMAR, J.
THE HON'BLE MRS. SANGEETA CHANDRA, J.

First Appeal No. 30 of 2020

Mrs. Nalini Singh ...Appellant
Versus
Lt. Col. Rajesh Kumar Singh ...Respondent

Counsel for the Appellant:
Ram Raj, Priyal Agarwal

Counsel for the Respondent:
----

(A) Civil Law - Family law - Hindu
Marriage Act, 1955 - Section 11- void
marriages, Section 12 -Voidable marriages ,
Section 13 - Divorce , Section 19(1) - Court to
which petition shall be presented - original
civil jurisdiction - marriage solemnised - Code
of Civil Procedure ,1908 - Order 7 Rule 11
C.P.C. - rejection of plaint - read with Section
151 C.P.C. - Order 10 - Examinaion of parties
by the court .

Marriage
of
appellant
and
respondent
solemnized according to Hindu Rites and
Customs - respondent filed a Petition under
Section 11 read with Section 12 read with
section 13 of the Hindu Marriage Act, 1955, in
the Court of Principal Judge, family court -
Family
Court
rejected
the
appellant's
application under Order 7 Rule 11 C.P.C. read
with Section 151 C.P.C. ( Para 3,4,7)

HELD :- The plaint filed by the plaintiff can
only be rejected when the same is barred by
any law or no cause of action has accrued to
the plaintiff for filing the same. No illegality or
infirmity in the impugned order passed by the
family court. (Para - 29,30)

First Appeal dismissed. (E-7)

List of Cases cited:-

1. Canara Bank Vs P. Selathal & ors., (2020)
SCC Online Supreme Court 245

2. T. Arivandandam Vs TV Satyapal & anr.,
(1977) 4 SCC 467

3. ITC Limited Vs Debt Recovery Appellate
Tribunal & ors., (1998)2 SCC 70

4. F.B. Smt. Kiran Bala Srivastava Vs Jai
Prakash Srivastava, 2005 LCD 1 F.B.

5.
Bhagwati
Prasad
Misra
Vs
Deputy
Commissioner, Barabanki, AIR 1945 Oudh
177

6.
Manohar Lal Chatrath Vs Municipal
Corporation of Delhi, AIR 2000 Del 40)

7. Rakesh Kumar Vs Umesh Kumar, AIR 2009
Del 129)

8. A.B.C. Laminart Pvt. Ltd. Vs A.P. Agencies,
Salem, (1989) 2 SCC 163

9. I.T.C. Ltd. Vs Debt Recovery Appellate
Tribunal and others, (1998)2 SCC 70

10. Sopan Sukhdeo Sable Vs Assistant Charity
Commissioner, (2004) 3 SCC 137

11. Church of Christ Charitable Trust &
Educational
Charitable
Society
Vs
Ponniamman Educational Trust, (2012) 8 SCC
706

12. Madanuri Sri Rama Chandra Murthy Vs
Syed Jalal, (2017) 13 SCC 174

13. Smt. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, 2005(23) LCD 1

(Delivered by Hon'ble Anil Kumar, J.)