Neutral Citation No. - 2023:AHC:147034

Court No. - 84

Case :- CRIMINAL APPEAL No. - 4911 of 2023

Appellant :- Vinay Mishra

Respondent :- State of U.P. and Another

Counsel for Appellant :- Satya Priya Mishra

Counsel for Respondent :- G.A.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

Order on second bail application

The present Criminal Appeal has been preferred against impugned

order dated 29.11.2021 passed by the learned Special Judge Judge

(SC/ST) Act/Additional Session Judge, Gorakhpur, whereby the

first Bail Application No. 5156 of 2021 (Vinay Mishra Vs. State of

U.P.) arising of Case Case Crime No. 291 of 2021, under Sections

302,307, 506, 120B I.P.C. and 3(2) (va) SC/ST Act, Police Station

Gola, District Gorakhpur has been rejected by the trial court.

Heard learned counsel for the appellant and learned A.G.A.. No

one appeared for opposite party no.2 despite of sufficient service

It is argued by the learned counsel for the appellant that in the first

information report, 17 persons were named and four persons were

unnamed. During the investigation, two more persons were added

and against four persons, final report had been submitted. As per

first information report, deceased Anish had solemnized love

marriage with Dipti Mishra, who was Brahmin by caste while

Anish belongs to Scheduled Cast, so the family members of the

Dipti Mishra were very much annoyed with this marriage and in

continuation of this, arrogance this incident is said to have taken

place. On 24.07.2021 between 9.00 to 10.00 hours Anish along

with his uncle Devi Dayal had gone to a hardware shop for

purchasing some material and after some time when Anish

returned and was to enter about into the car, four persons equipped

with sharp edged weapons came and assaulted Anish and when his

uncle Devi Dayal came for rescue he was also assaulted by them.

Both received serious injuries. Anish was declared brought dead in

the hospital, while Devi Dayal was referred to Gorakhpur Hospital.

It is submitted that out of 17 named persons, seven persons have

been granted bail by this Court, while three out of four persons

whose names were disclosed in the Statement of Devi Dayal, have

been granted bail by Apex Court vide order dated 27.01.2023 in

SLP (CrL) Nos. 9930-9931 of 2022. Parity of these three accused

persons is also claimed.

It is further submitted that incident is dated 24.07.2021. Devi

Dayal was discharged from the hospital on 28.07.2021 but his

statement was recorded after 38 days of the incident and then only

he is said to have disclosed the name of four persons including the

present one. No specific role has been assigned to the present

accused in the first information report. No recovery has been made

from the possession of the applicant. There is no criminal history

to the credit of the applicant. In the first information report and in

the statement of the injured, the time of incident is different. As in

the first information report, the incident is shown to be at 9.00 to

10.00 hours while in the statement of the injured Devi Dayal, the

time of incident has been disclosed to be 11.45 hours in the

morning. Thus, the implication of the present applicant claiming

false, it is claimed that case of the present applicant is on better

footing, except Devi Dayal the injured witness, no one has

identified the accused persons on the spot, hence the prayer for

bail is made.

Learned A.G.A. opposed the prayer for bail on the ground that

incident is dated 24.07.2021 and the first information report has

been lodged on 25.07.2021 wherein 17 persons were named and

later on the only injured witness Devi Dayal disclosed the name of

four persons including the present one, being involved in the

incident. It is submitted that at the instance of the present applicant

as well as co-accused Priyansu, the knife used in the incident has

been recovered. In the postmortem report, nine injures were found

on the person of the deceased and out of nine i