Court No. - 86

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43084 of 2021

Applicant :- Brajesh

Opposite Party :- State of U.P.

Counsel for Applicant :- Phool Singh

Counsel for Opposite Party :- G.A.

Hon'ble Saurabh Shyam Shamshery,J.

1. This Court is working only on virtual mode due to upsurge of Covid-19 cases.

2. Sri Phool Singh, learned counsel for applicant and Sri R.K. Srivastava,

learned A.G.A. for State, have appeared through Video Conferencing.

3. Applicant-Brajesh, has approached this Court by way of filing the present

Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of his

Bail Application vide order dated 16.08.2021, passed by District and Sessions

Judge, (Ramabai Nagar) Kanpur Dehat, in Case Crime No.211 of 2021, under

Sections 323 304, 506 I.P.C., Police Station Bilhaur, District Kanpur Nagar.

4. Learned counsel for applicant submits that applicant was a guest in the

marriage party of the elder sister of deceased and has tried to mediate a dispute

which arose in the marriage party among the family of bride and groom with

regard to demand of dowry. He is falsely implicated in the present case. The

witnesses, which are in the nature of interested persons, have not identified the

author of injury caused to deceased on her stomach. There was a huge crowd in

the wedding ceremony, however, no independent witness has come forward to

support the case of prosecution. There is no evidence that the applicant caused

death of younger sister of bride by causing injury by a brick. The applicant has

no other reported criminal antecedent and he is languishing in jail since

06.07.2021, there is no likelihood of early disposal of trial and the applicant

undertakes that if enlarged on bail, he will never misuse his liberty and will co-

operate in the trial.

5. Learned A.G.A. appearing for State has opposed the prayer for bail and

submits that applicant alongwith co-accused under the influence of liquor made

ruckus in the marriage party and caused death of the younger sister (aged about

8 years) of bride by assaulting at her stomach which led to perforation in the

small intestine, therefore, it is not a case of bail.

6(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail

should not be granted or rejected in a mechanical manner as it concerns liberty

of a person. At the time of considering an application for bail, the Court must

take into account certain factors such as existence of a prima facie case against

the accused, gravity of the allegations, severity of punishment, position and

status of the accused, likelihood of the accused fleeing from justice and

repeating the offence, reasonable apprehension of tampering with the witnesses

and obstructing the Courts as well as criminal antecedents of the accused.

(B) It is also well settled that the Court while considering an application for bail

must not go into deep merits of the matter such as question of credibility and

reliability of prosecution witnesses which can only be tested during the trial.

Even ground of parity is one of the above mentioned aspects which are

essentially required to be considered. It is also well settled that the grant or

refusal of bail is entirely within the discretion of the judge hearing the matter

and though that discretion is unfettered, it must be exercised judiciously and in a

humane manner, compassionately and not in whimsical manner.

(C) The Court should record the reasons which have weighed with the count for

the exercise of its discretionary power for an order granting or rejecting bail.

Conditions for the grant of bail ought not to be so strict as to be incapable of

compliance, thereby making the grant of bail illusory.

7. In the present case according to evidence collected during investigation the

applicant and accused persons came under the influence of liquor in the

marriage party where they created ruckus and assaulted the younger sister, aged