# Sri Krishna Rathor v. State of U.P. Opp. Party

- **Citation:** (2022) 2 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-18
- **Case number:** Court in Execution Case No. 1 of 2017
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-krishna-rathor-v-state-of-u-p-opp-party-48117
- **Pages:** 6

## Headnote

G.A.

A. Bail - The Court granted him bail on
the ground that the witnesses are from
inside the family and amongst the
native villagers and therefore there is
no possibility of the applicant of fleeing
away from the process of the Court.
(Para 18)

Bail Application Allowed. (E-10)

List of Cases cited:

## Text

304 INDIAN LAW REPORTS ALLAHABAD SERIES
loosing possession to the decree holder and
then to make an application under Rule 99
of Order XXI, C.P.C."

33. Thus, in view of the above, this
Court is of the considered opinion that the
application filed by the resistor/obstructor
under Order 21 Rule 97 claiming himself to
be in possession of the property in
issue/dispute, would be maintainable and
for this very reason, the same should be
decreed on merits even if no application is
filed by the decree holder to the Court
complaining/informing
regarding
resistance/obstruction in obtaining the
possession of the property in decree.

34. The question(s) framed above are
answered accordingly.

35. In view of the above, it was
incumbent upon the Execution Court to
decide/adjudicate the application/objection
of the petitioner preferred under Order 21
Rule 97/99/101 CPC to find out the nature
of the rights of the petitioner over the
disputed property. Thus, the Execution
Court committed error in rejecting the
application/objection
of
the
petitioner
under Rule 97/99/101 of Order 21 CPC as
not maintainable.

36. For the all reasons aforesaid, the
present petition is allowed and the
impugned orders dated 29.10.2021 and
11.11.2021 passed by the Execution
Court in Execution Case No. 1 of 2017
are set-aside and the matter is remanded
back to Execution Court for afresh
decision of the application/objection of
the petitioner under Order 21 Rule
97/99/101 CPC in accordance with law as
expeditiously
as
possible
preferably
within a period of six months from the
date of production of certified copy of
this order, if possible and if there is no
other legal impediment in this regard. In
concluding the proceedings, the court
concerned
shall
avoid
unnecessary
adjournments to the parties.

37. In above terms, the petition is
allowed.
----------
(2022)02ILR A304
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.02.2022

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Crl. Misc. Bail Appl. No. 862 of 2022

Sri Krishna Rathor ...Applicant
Versus
State of U.P. ...Opp. Party

Counsel for the Applicant:
Suyesh Pradhan

Counsel for the Respondents:
G.A.

A. Bail - The Court granted him bail on
the ground that the witnesses are from
inside the family and amongst the
native villagers and therefore there is
no possibility of the applicant of fleeing
away from the process of the Court.
(Para 18)

Bail Application Allowed. (E-10)

List of Cases cited:

1. Bhagwan Singh Vs The St. f Uttarakhand
(2020) 14 SCC 184

2. Sanjay Chandra Vs Central Bureau of
Investigation (2012) 1SCC 40 Spectrum Scam
Case

3. Prahlad Singh Bhati Vs NCT, Delhi & anr.
2001 4 SCC 280
2 All. Sri Krishna Rathor Vs. State of U.P.
305
4. Dataram Singh Vs St.of U.P. & ors. (2018) 3
SCC 22

(Delivered by Hon'ble Vikas Kunvar
Srivastav, J.)

1. The case is called out.

2. Learned counsel for the bail
applicant,
Sri
Vaibhav
Srivastava,
Advocate assisted by Sri Suyesh Pradhan,
Advocate and learned A.G.A. for the State,
Sri Ajay Kumar Singh Tomar, Advocate
are physically present in the Court.

3. The present bail application is
moved on behalf of accused-applicant Sri
Krishna Rathor, involved in Case Crime
No.511 of 2021, under Section 304 of the
I.P.C., registered at Police Station Sandana,
District Sitapur.

4. The occasion of present bail
application has arisen on rejection of bail
plea of the accused-applicant by learned
Special Judge, Sitapur vide order dated
11.01.2022.

5. Counter affidavit and rejoinder
affidavit
have
duly
been
exchanged
between the contesting parties to the case,
as such, the case is ripe for hearing.

6. Opening the argument, learned
counsel for the bail applicant addresses the
case as a case of harsh (celebratory) firing
but peculiarly enough the firing is done by
one inmate of the house in a tilak ceremony
of another family member in enthusiasm of
the ceremonial spirit. Daringly enough he
opened the fire by reason of which a
woman of the concerned family got
seriously injured and ultimately died on
spot. Another peculiarity of the fact lies in
the first information report of the incident
is not lodged by any of the family members
but it was noticed by local police itself
entered in G.D. of 07.12.2021. It is
reported by the police officer that at about
07:30 P.M. when the tilak ceremony was
going on the fire was made open in
enthusiasm by accused-applicant causing
hurt and fatal injuries to the woman i.e. the
deceased victim namely Anju D/o Ramnath
and wife of one Pradeep.

7. Learned counsel submitted that
there was neither the intention to kill the
deceased nor the pistol was aimed to fire on
her, therefore, act of the accused-applicant
was atmost of rash and negligence. He
further added that not only the present
accused-applicant but there were so many
others also present in the ceremonial crowd
who opened harsh (celebratory) firing in
the same enthusiasm as shown by the
present accused-applicant. Learned counsel
further submitted that it is not established
by the prosecution that only the present
accused-applicant's act was responsible for
causing death of the deceased "Anju".

8. Learned A.G.A. on the other hand
protested the bail application quoting the
statement of witnesses who are relatives
and were gathered at the ceremonial place
at the relevant time of incident particularly
the statement of Smt. Shanti Devi i.e.
mother of the deceased, impressing on the
fact that she has confined the role of fatal
firing causing the death of the deceased
immediately on the spot to the present
accused-applicant only.

9. Learned A.G.A. further quoted the
first
information
report
which
was
investigated and ultimately charge sheet
was
submitted
wherein
number
of
witnesses are named who were present on
spot at the relevant time of incident and
306 INDIAN LAW REPORTS ALLAHABAD SERIES
have unequivocally stated about the firing,
however, some of them have not stated to
have seen any particular person firing by
whom, the fatal injuries occurred to the
deceased "Anju".

10. On the ground of aforesaid
materials available on the case diary,
learned A.G.A. submitted that offence is
not only rash, negligent and irresponsible
but also unmindful act with brutality in
nature. However, any kind of previous
enmity on the part of present accusedapplicant with the family members of the
deceased is not stated in the counter
affidavit even criminal antecedent is not
stated.

11. Learned counsel for the bail
applicant
submitted
that
the
present
accused-applicant is a government servant
and his employment is the only means of
livelihood for his entire family, as such,
there is a question at this stage whether he
should be given an opportunity to defend
himself in the course of trial.

12. Hearing the learned counsel for
the bail applicant, learned A.G.A. for the
State and after perusing materials available
on record, it would be relevant to quote
Section 299 of the Indian Penal Code,
1860, which runs as under:-

"299. Culpable homicide. - Whoever
causes death by doing an act with the
intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.
Illustrations

(a) A lays sticks and turf over a pit,
with the intention of there by causing
death, or with the knowledge that death is
likely to be thereby caused. Z believing the
ground to be firm, treads on it, falls in and
is killed. A has committed the offence of
culpable homicide.

(b) A knows Z to be behind a bush. B
does not know it A, intending to cause, or
knowing it to be likely to cause Z`s death,
induces B fires and kills Z. Here B may be
guilty of no offence; but A has committed
the offence of culpable homicide.

(c) A, by shooting at a fowl with intent
to kill and steal it, kills B who is behind a
bush; A not knowing that he was there.
Here, although A was doing an unlawful
act, he was not guilty of culpable homicide,
as he did not intend to kill B, or to cause
death by doing an act that he knew was
likely to cause death.

Explanation 1

A person who causes bodily injury to
another who is labouring under a disorder,
disease or bodily infirmity, and thereby
accelerates the death of that other, shall be
deemed to have caused his death.

Explanation 2

Where death is caused by bodily
injury, the person who causes such bodily
injury shall be deemed to have caused the
death, although by resorting to proper
remedies and skilful treatment the death
might have been prevented.

Explanation 3

The causing of the death of child in the
mother`s womb is not homicide. But it may
amount to culpable homicide to cause the
death of a living child, if any part of that
child has been brought forth, though the
child may not have breathed or been
completely born."

13. In the present case which emerges
out from the first information report and the
statement of the witnesses that the firing
was done though without any intention on
the occasion of ceremony of tilak in the
2 All. Sri Krishna Rathor Vs. State of U.P.
307
house of incident where numerous relatives
and villagers were gathered not only on the
ground but also on the roof of the house of
incident, using fire arm in such a crowded
gathering is rash and negligent which
caused an irreparable loss to the family of
the deceased not able to be compensated in
terms of money, but since every accused,
howsoever graver may be the offence,
should be given an opportunity to defend
himself by putting evidences in his favour,
if any, in the course of trial.

14. In Bhagwan Singh vs The State
Of Uttarakhand, Criminal Appeal No.407
of 2020 decided on 18.03.2020 reported in
(2020) 14 SCC 184, Hon'ble the Apex
Court has observed as under:-

"Incidents of celebratory firing are
regretfully rising, for they are seen as a
status symbol. A gun licensed for selfprotection or safety and security of crops
and cattle cannot be fired in celebratory
events, it being a potential cause of fatal
accidents."

15. In the present case also, it appears
prima facie from the evidence on record
that the appellant aimed the gun towards
the roof and then fired. It was an
unfortunate case of misfiring. The applicant
ofcourse cannot absolve himself of the
conclusion that he carried a loaded gun at a
crowded place where his own guests had
gathered to attend the marriage ceremony.
He did not take any reasonable safety
measure like to fire the shot in the air or
towards the sky, rather he invited full risk
and aimed the gun towards the roof and
fired the shot. He was expected to know
that pellets could cause multiple gunshot
injuries to the nearby persons even if a
single shot was fired. As such by his act the
applicant has himself brought his case
under the purview of offence under Section
299 of the Indian Penal Code, 1860
punishable under Section 304 of the Indian
Penal Code, 1860.

16. Hon'ble the Supreme Court in
para 21, 22 and 23 of the judgment given in
the case of Sanjay Chandra Vs. Central
Bureau of Investigation reported in [(2012
1 SCC 40)-(Spectrum Scam Case)], has
laid down certain objects of bail under
Section 437 & 439 of the Cr.P.C. which are
as follows:

"21. In bail applications, generally, it
has been laid down from the earliest times
that the object of bail is to secure the
appearance of the accused person at his
trial by reasonable amount of bail. The
object of bail is neither punitive nor
preventative. Deprivation of liberty must be
considered a punishment, unless it is
required to ensure that an accused person
will stand his trial when called upon. The
courts owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed
to be innocent until duly tried and duly
found guilty.

22. From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to time,
necessity demands that some unconvicted
persons should be held in custody pending
trial to secure their attendance at the trial
but in such cases, "necessity" is the
operative test. In this country, it would be
quite contrary to the concept of personal
liberty enshrined in the Constitution that
any person should be punished in respect of
any matter, upon which, he has not been
convicted or that in any circumstances, he
should be deprived of his liberty upon only
the belief that he will tamper with the
308 INDIAN LAW REPORTS ALLAHABAD SERIES
witnesses if left at liberty, save in the most
extraordinary circumstances.

23. Apart from the question of
prevention being the object of refusal of
bail, one must not lose sight of the fact that
any imprisonment before conviction has a
substantial punitive content and it would be
improper for any court to refuse bail as a
mark of disapproval of former conduct
whether the accused has been convicted for
it or not or to refuse bail to an unconvicted
person for the purpose of giving him a taste
of imprisonment as a lesson."

17. In Prahlad Singh Bhati Vs. NCT,
Delhi and another - (2001 4 SCC 280 ),
Hon'ble the Supreme Court has held some
parameters for grant of bail, which are
being quoted hereunder:-

"8. The jurisdiction to grant bail has
to be exercised on the basis of well-settled
principles
having
regard
to
the
circumstances of each case and not in an
arbitrary manner. While granting the bail,
the court has to keep in mind the nature of
accusations, the nature of evidence in
support thereof, the severity of the
punishment which conviction will entail,
the character, behaviour, means and
standing of the accused, circumstances
which are peculiar to the accused,
reasonable possibility of securing the
presence of the accused at the trial,
reasonable apprehension of the witnesses
being tampered with, the larger interests of
the public or State and similar other
considerations. It has also to be kept in
mind that for the purposes of granting the
bail the legislature has used the words
"reasonable grounds for believing" instead
of "the evidence" which means the court
dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a
genuine case against the accused and that
the prosecution will be able to produce
prima facie evidence in support of the
charge. It is not expected, at this stage, to
have the evidence establishing the guilt of
the accused beyond reasonable doubt."

18. In the present case as the record
shows charge sheet has already been
submitted by the Investigating Officer
before the Court concerned, trial is to be
continued, the witnesses are more so inside
the family and amongst the native villagers,
therefore, there is no possibility of fleeing
away from the process of the Court.

19. Keeping into mind the valuable
right
of
personal
liberty
and
the
fundamental principle not to disbelieve a
person to be innocent unless held guilty and
if he is not arraigned with the charge of an
offence for which the law has put on him a
reverse burden of proving his innocence, as
it is held in the judgment of Hon'ble the
Supreme Court in Dataram Singh Vs. State
of U.P. and ors. reported in (2018) 3 SCC
22, I find force in the submission of learned
counsel for the bail-applicant to enlarge
him on bail.

20. Keeping into mind the grief and
bereaveness of the family who have lost
their
daughter,
though
the
accusedapplicant in the present case may be
granted order to be released on bail but
some
conditions
also
need
to
be
encumbered on him in a bid to compensate
to the bereaved family to an insignificant
extent.

21. Let the accused-applicant (Sri
Krishna Rathor) involved in Case Crime
No.511 of 2021, under Section 304 of the
I.P.C., registered at Police Station Sandana,
District Sitapur be released on bail only on
paying of Rs.5,00,000/- through a bank
2 All. Babu Pasi alias Babu Lal Pasi & Anr. Vs. State of U.P.
309
draft in the name of mother of the
deceased namely Smt. Shanti Devi W/o
Ramnath and on his furnishing a personal
bond of Rs.1,00,000/- and two reliable
sureties of the like amount to the
satisfaction of the court concerned subject
to following additional conditions, which
are being imposed in the interest of justice:-

(i) If proceeding for cancellation of
armed license is not done, the District
Magistrate,
Sitapur
is
required
to
initiate proceeding in accordance with
law for the purpose to cancel the arm
license of the accused-applicant in
circumstances of the case.

(ii) The applicant 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.

(iii) The applicant shall remain present
before the trial court on each date fixed,
either personally or through his counsel. In
case of his absence, without sufficient
cause, the trial court may proceed against
him under Section 229-A of the Indian
Penal Code.

(iv) In case, the applicant misuse the
liberty of bail during trial and in order to
secure his presence, proclamation under
Section 82 Cr.P.C. is issued and if the
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 of the Indian Penal Code.

(v) The applicant shall remain present,
in person, 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
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.
----------
(2022)02ILR A309
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 22.02.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIVEK VARMA, J.

Criminal Appeal No. 595 of 1982

Babu Pasi alias Babu Lal Pasi & Anr.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
J.N. Chaudhary, H B Singh, Harendra Pratap
Singh, Ram Chandra Dwivedi, Saket Tiwari,
Shilendra Kumar, Sumit K. Srivastava

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A, Evidence Act, 1872 -
Section 3 - Offence of Murder - Attempt to
Murder - Dacoity with Murder - Evidence of Eye
witnesses - Credibility & Reliability - all three
eye witnesses - Alleged to be self contradictory
and their presence on the spot is doubtful.

Criminal Law - Indian Penal Code,1860 -
Sections 300, 302 r/w 34 , 114, 396, 307,
323, 325 & 404 - Code of Criminal
Procedure, 1973 - Sections 313, 374 (2),
378 (1) & 437 A - Evidence Act, 1872 -
Section -3 - offence of Murder - Testimony of
Eye witnesses - Credibility & Reliability - Eye
witnesses implicated also Nine other co-accused