# Vishal Kharwar @ Veetu v. State of U.P. Opp. Party 382 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 6 ILRA 381
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-15
- **Case number:** Bail No. 1118 of 2021
- **Bench:** Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishal-kharwar-veetu-v-state-of-u-p-opp-party-382-indian-law-reports-allahabad-47111
- **Pages:** 5

## Headnote

(A) Criminal Law - Bail - Indian Penal Code,
1860 - Sections 307/34 & 302 - Catching
hold - liability of co-accused in like offence -
role and the liability of a person having
caught & hold the victim cannot be different
from the intention of the person committing
murder and neither should his liability
separable. (Para - 14,16)

Incident is day light incident - eye witnesses of
incident - described - catching hold to the
deceased - accused having caught and stopped
-
consequently

murdered
-
presence
/participation of all accused in the incident -
involvement in co-operation with each other -
commission of offence - common intention to
commit murder - witnesses are neighbouring -
naturally residing in the locality - knowing both,
complainant and accused persons very well -
presence and identification of the accused -
probable and reliable .

HELD:-The entirety of facts as emerging from
the statements of witness annexed with the
affidavit in support of the bail-application ,
prima facie case of prosecution established
against the present accused-applicant. Further
the manner, incident was committed and the
nature of the accused persons apparent from
the evidences, all are sufficient together to
show, the accused-applicant is capable of
tampering the evidences and to affect the
witness adversely. (Para - 17)

Bail application rejected. (E-6)

List of Cases cited:-

Kirpal & Bhopal Vs St. of U.P., AIR 1954 SC 706

## Text

6 All. Vishal Kharwar @ Veetu Vs. State of U.P.
381
bail subject to the conditions imposed by the
Court with which he shall abide himself.

12. Protesting the bail plea as argued by
learned counsel for the bail-applicant, learned
A.G.A. for the State submitted that the
present accused-applicant is a person of
mischievous character. On the basis of
instructions received to him, he has submitted
that it is sufficient to show the instinct of the
accused that he will affect adversely the
witnesses and the evidences against him, if
released on bail. Moreover, inimical relations
between the parties is admitted.

13. Learned A.G.A. further submitted
that even after the lodging of first information
report, nature and behavior of the accusedapplicant are enough to dis-entitle him for
grant of bail at this stage.

14. Learned A.G.A. further submitted
that the learned trial court need be directed to
proceed expeditiously so as the complainant's
evidences alongwith other material witness of
the fact are recorded so that the complainant
may be saved from being affected adversely
by reason of long drawn trial.

15. On hearing the parties on the facts
and circumstances and perusal of the
materials on record, keeping in view the
entirety of facts as emerging from the
statements of witness annexed with the
affidavit in support of the bail-application are
also sufficient together to show, the accusedapplicant is capable of tampering the
evidences and affect the witness adversely.

16. On perusal of record, it also appears
that the present accused-applicant is assigned
the role of committing penetrative offence
against a 16 years old minor child. The
statements under Section 161 Cr.P.C. and
164 Cr.P.C. are intact to the same effect, the
statement of the victim as such prima facie
believable and reliable because of it's being at
par on the higher pedestal of credibility like
injured witness of an violent incident.
Moreover, there is no explanation of the
incident made in the affidavit in support of
bail-application. Further, Section 29 of the
POCSO Act makes a presumption of the
offence, since the allegations made by the
victim girl remains unrebutted, therefore,
prima facie the presumption of commission
of offence by the present accused-applicant is
constituted. Moreover, the victim is a child
and she might be exposed to the threat of life
and living as well as undue pressure in the
course of trial as the accused is also a native
of the same locality.

17. On the basis of above discussions, I
find no force in the submission of learned
counsel for the bail-applicant and the bailapplication is rejected at this stage.

18. Learned court below is directed to
expeditiously proceed with the trial of the
case as soon as practicably possible, within
one year from the date, certified copy of the
order is placed before it.

19. The present accused-applicant may
have right to avail remedy of bail afresh after
expiry of aforesaid period.
----------

(2021)06ILR A381
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 1118 of 2021

Vishal Kharwar @ Veetu ...Applicant
Versus
State of U.P. ...Opp. Party
382 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Madhulika Yadav, Savita Kumari

Counsel for the Opp. Party:
G.A.

(A) Criminal Law - Bail - Indian Penal Code,
1860 - Sections 307/34 & 302 - Catching
hold - liability of co-accused in like offence -
role and the liability of a person having
caught & hold the victim cannot be different
from the intention of the person committing
murder and neither should his liability
separable. (Para - 14,16)

Incident is day light incident - eye witnesses of
incident - described - catching hold to the
deceased - accused having caught and stopped
-
consequently

murdered
-
presence
/participation of all accused in the incident -
involvement in co-operation with each other -
commission of offence - common intention to
commit murder - witnesses are neighbouring -
naturally residing in the locality - knowing both,
complainant and accused persons very well -
presence and identification of the accused -
probable and reliable .

HELD:-The entirety of facts as emerging from
the statements of witness annexed with the
affidavit in support of the bail-application ,
prima facie case of prosecution established
against the present accused-applicant. Further
the manner, incident was committed and the
nature of the accused persons apparent from
the evidences, all are sufficient together to
show, the accused-applicant is capable of
tampering the evidences and to affect the
witness adversely. (Para - 17)

Bail application rejected. (E-6)

List of Cases cited:-

Kirpal & Bhopal Vs St. of U.P., AIR 1954 SC 706

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

1. The case is called out through
video conferencing.

2. Learned counsel for the bailapplicant Ms. Madhulika Yadav, Advocate
and learned A.G.A. for the State Sri Suresh
Kumar Tiwari, Advocate are connected
through video conferencing in virtual
hearing of the case.

3. The present bail-application is
moved on behalf of accused-applicantVishal Kharwar @ Veetu, who is involved
in Case Crime No.348 of 2020, under
Sections 307/34 and 302 of I.P.C.,
registered at Police Station Chanda, District
Sultanpur.

4. The occasion of present bailapplication has arisen on rejection of bailplea of the accused-applicant by learned
Sessions Judge, Sultanpur vide order dated
17.12.2020.

5. Reading over the first information
report lodged on 09.09.2020, learned
counsel for the bail-applicant submits the
prosecution case, that on 09.09.2020 at
about 07:40 P.M., complainant's uncle
namely Anoop Shukla went to the shop of
one Harishchandra Kharwar for buying
something, where a dispute occurred
between
her
uncle
and
the
said
Harishchandra Kharwar. At that time,
Harishchandra Kharwar alongwith his three
sons
namely
Veeru
Kharwar,
Sheru
Kharwar and Prince Kharwar attacked on
her uncle and inflicted blows on neck,
stomach and shoulders with a sharp edged
weapon. On listening the hue and cry,
father of the complainant namely Amit
Kumar Shukla reached at the spot, where
all the aforesaid four accused persons
attacked on him also with the same
weapon. Thereafter, all the accused fled
away from the spot and complainant
alongwith her family members when
reached near the victims, she found that her
6 All. Vishal Kharwar @ Veetu Vs. State of U.P.
383
uncle Anoop Shukla was killed by them
and her father Amit Shukla was severely
injured.

6. Learned counsel for the bailapplicant argued for grant of bail to the
present accused-applicant on the ground
that his role is assigned in the first
information report and the statement of
witnesses is only of catching hold to the
deceased. Secondly, the eye witnesses are
falsely posed by the Investigating Officer
as eye witnesses, otherwise their version,
itself shows that they reached on the spot of
incident only after the commission of the
alleged offence. Learned counsel herself
distinguished the role of present accusedapplicant with that of the co-accused,
'Harishchandra Kharwar', his father on the
basis that the witnesses stated him only
who was armed with the knife as well as
inflicted blows of the same on victims.
Lastly, she argued about the enmity grown
from the Panchayat elections, wherein the
family of the accused-applicant did not
support
the
complainant's
side,
in
vengeance of which, the entire family is
falsely implicated by the informant.

7. Learned A.G.A. for the State drew
the attention towards the first information
report and the statement of eye witnesses
particularly 'Anurag Shukla' and 'Chandra
Prakash Shukla'. He submitted that the
presence and attendance of the said
witnesses on the spot of incident at the
relevant time when the offence was being
committed
is
established
by
their
statements. Moreover, the witnesses have
stated that all the accused including the
present accused-applicant were beating and
dragging the deceased and his brother
(injured in the incident), were inflicting
blows of sharp edged weapon like knife.
Other witnesses have also stated the knife
in the hands of Harishchandra Kharwar
specifically. The post mortem report, made
annexure no.4 to the bail-application,
contains the anti mortem injury reported by
the doctor, who did autopsy on the dead
body of Anoop Shukla, one of the victims.
The injuries are reported as under:-

"2- Oral bleed

3- 4x0.5 x cavity deep incised wound
on rt upper chest 1 cm below re lap
clavicle.

4- 3x0.5 cm x cavity deep incised
wound on rt chest 8 cm Below rt nupple.

5- 5x0.5 muscles deep incised wound
below left chin.

6- 1x0.5 cm cavity deep incised wound
below
left
abdomen.
6
cm
at
...............intestine come out.

7- 1x0.5 cm x skin deep incised wound
on left shoulder."

8. In the above context of antimortem
injures found on the body of deceased,
learned A.G.A. submitted that they directly
connect the manner of commission of
offence as stated by the witnesses, by the
accused-applicant and his companions
because there are multiple incised wound
on the body of the deceased. Secondly, the
presence and attendance of 'Amit Shukla',
the other victim of the incident, who is
injured, is also prima facie proved by
medical examination report. The report is
as under:-

"Stab Injury (Rope of neck) & left
back (L) Side Hemi plegia dlt A/H/O
assault c knife"

9. Learned A.G.A. further submitted
that the injuries on the body of deceasedvictim as well as the injured victim in
themselves make it clear that not only the
Harishchandra Kharwar, one of the co-
384 INDIAN LAW REPORTS ALLAHABAD SERIES
accused but all the persons accused, named
by the witnessed have caused them.

10. After hearing the rival contentions
of the contesting parties to the case and
perusal of materials on the record of the
case, following facts are considered for the
purpose of decision of applicant's prayer to
release on bail.

11. It is noteworthy that all the
accused
have
been
arraigned
under
Sections 307/302 read with Section 34 of
Indian Penal Code, 1860. The manner in
which the eye witnesses of the incident
dated 09.09.2020 have described the
presence/participation of all the accused in
the incident and their involvement in the
co-operation with each other in the
commission of the offence, their common
intention to commit murder is prima facie
obvious from their act and conduct. The
incident is day light incident and witnesses
are neighbouring, naturally residing in the
locality and knowing both, the complainant
and the accused persons very well. The
presence and identification of the accused
is probable and therefore reliable at this
stage also, prima facie.

12. The contention of learned counsel
for the bail-applicant that the incriminating
article knife was stated by the eye
witnesses in the hand of co-accused
Harishchandra Kharwar only and rest of the
co-accused including the present accusedapplicant were assigned role of catching
hold of the victim (deceased) Anoop
Kumar Shukla, much vehemence is put
over this in claiming the present accusedapplicant's innocence.

13. It is argued that the role of the
present accused-applicant is merely to
caught and hold the deceased to detain
him
during
the
incident
under
the
furtherance of common intention enshrined
in Section 34 of the Indian Penal Code,
1860, his act was deemed to have been
committed by all the accused in furtherance
of common intention to murder the victim
of the incidence (deceased) and he shall be
deemed to be a joint participant in crime as
well as equally liable for the murder. The
role of present accused can not be separated
for the purpose of prima facie ascertaining
his innocence from the cumulative effect of
the acts of all the accused, the killing of the
deceased.

14. In Kirpal and Bhopal Vs. State of
Uttar Pradesh reported in AIR 1954 SC
706, para 6 explains the liability of coaccused in like offence. The relevant
portion of para 6 is quoted hereunder :-

"The question, however, remains as to
which of these three appellants are guilty
and what offence has been committed by
each. The learned Sessions Judge while
holding all the three appellants responsible
for causing the death of Jiraj was of the
opinion that they could be guilty only under
Section 304 IPC taken with Section 34 IPC
on the ground that there is no evidence of
any preconcerted or predetermined plan to
kill the deceased Jiraj and that the blows
were inflicted by the appellants in the
course of a sudden fight in the passion
without having taken undue advantage or
acted in a cruel or unusual manner. The
learned Judges of the High Court quite
rightly pointed out that a preconcert in the
sense of a distinct previous plan is not
necessary to proved. The common intention
to bring about a particular result may well
develop on the spot as between a number of
persons, with reference to the fact of the
case and circumstances of the situation.
Whether in a proved situation all the
6 All. Shameem Ahmad Vs. State of U.P.
385
individuals
concerned
therein
have
developed
only
simultaneous
and
independent intentions or whether a
simultaneous consensus of their minds to
bring about a particular result can be said
to have been developed and thereby
intended by all of them, is a question that
has to be determined on the facts............."

15. If the present accused-applicant
had not allegedly stopped with other coaccused (his brothers) by catching hold the
deceased, he could have saved himself
from the stabbing of the knife by the coaccused Harishchandra Kharwar or could
have escaped from the scene of the
incident, could have saved his life. But this
could not happen because of the present
accused having caught and stopped the
deceased, consequently he was murdered.

16. In situation like that of the present
case, when some people, in a dispute with
another person start beating him, even
when one or more of them become so
violent and strike him with hand, kicks and
fist or strangulate him or do some fatal act
or wield lethal weapon in such a way to
ensure his death and those who are still
involved
in
the
incident
throughout
knowing
very
well
the
probable
consequences of the acts being done by
their companions (co-accused), and caught
hold the victim of the incident untill the
other participants in crime ensures the
victim's death or about to death by reason
of the injury sustained in the course of
evidences, the role and the liability of such
a person having caught & hold the victim
cannot be different from the intention of the
person committing murder and neither
should his liability separable.

17. On the basis of aforesaid
discussions, the facts and circumstances
and perusal of the materials on record, the
entirety of facts as emerging from the
statements of witness annexed with the
affidavit in support of the bail-application, I
find the prima facie case of prosecution
established against the present accusedapplicant. Further the manner, incident was
committed and the nature of the accused
persons apparent from the evidences, all are
sufficient together to show, the accusedapplicant is capable of tampering the
evidences and to affect the witness
adversely.

18. Without making comment as to
the merit of the case, I find no force in the
submission of learned counsel for the bailapplicant
and
the
bail-application
is
rejected at this stage.

19. Learned court below is directed to
expeditiously proceed with the trial of the
case as soon as practicably possible, within
one year from the date, certified copy of the
order is placed before it. In deciding the
case on merit, the trial court need not to be
swayed away with any observation made
by this Court in the order.

20. The present accused-applicant
may have right to avail remedy of bail
afresh after expiry of aforesaid period.
----------
(2021)06ILR A385
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.06.2021

BEFORE

THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Bail No. 1419 of 2021

Shameem Ahmad ...Applicant
Versus
State of U.P. ...Opp. Party