Uttarakhand High Court
Order On The Bail Application Of The ... vs State Of Uttarakhand on 20 May, 2021
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
ORIGINAL JURISDICTION
Dated Nainital the 20th May, 2021
1st Bail Application No. 2565 of 2020
Order on the bail application of the accused.
Saurabh (Male) aged about 26 years
S/o Anand Singh
R/o Village Prithvipur, Police Station Vikasnagar,
District Dehradun ....... Applicant
Versus
State of Uttarakhand ........ Opposite Party
In FIR No. 131 of 2020
Under Sections 307, 394, 397 IPC read with Section 34 of the IPC
Police Station Premnagar,
District Dehradun
Hon'ble Sharad Kumar Sharma, J.
Heard Mr. Rajat Mittal, learned counsel for the applicant and Mr. Sachin Panwar, learned Brief Holder for the State of Uttarakhand.
2. The present Bail Application has been preferred by the accused/ applicant/Saurabh, seeking his bail, by invoking the provisions contained under Section 439 of the Cr.P.C., for his alleged involvement in the commission of the offences under Sections 307, 394, 397 to be read with Section 34 of the IPC, which was registered, as an FIR No. 131 of 2020, on 2nd August 2020, at Police Station Premnagar, District Dehradun.
3. Prima facie, the set of allegation which had been levelled in the FIR by the complainant Satyakarnwal, was to the effect, that on 1st August 2020, at about 8.05 p.m., when he was going on a motorcycle, along with an another person, bearing motorcycle registration No. UK07BJ-2821, i.e. his friend Shankar Bora, to their residence via Salakui, when they reached at Dholkot Jungal, a motorcycle on which there were two persons sitting, when they crossed the motorcycle of the complainant, the person sitting at the back i.e. the pillion rider, fired at them and Sankar, who was riding the motorcycle at the time of commission of offence, is said to have suffered a bullet injuries and the said bullet fired by the pillion rider, hit his right side on the ribs. Later on, despite of the injuries being suffered, they reached upto Maa Dat Kali Mandir, located at Dholkote, and from there, he dialed 108 for medical assistance. After some time, the police also reached there on the spot, and they were sent by ambulance to Synergy Hospital, Dehradun, where he was admitted and placed under treatment, and an FIR was registered at Police Station Premnagar, District Dehradun, at 3:05 a.m. on 02.08.2020.
4. Later on, on the basis of the investigation, which was being conducted for the offence as registered by the FIR. The FIR was registered as against unknown persons and the present applicant alleges that he was not named in the FIR. The applicant preferred bail application, being Bail Application No. 131 of 2020, before the Court of Sessions Judge, Dehradun, and the learned Court of Session Judge, had rejected the Bail Application, vide its order dated 9th December, 2020.
5. After the rejection of the Bail Application, the present Bail Application has been preferred by the applicant on 22.12.2020, before this Court, on several grounds, which had been pleaded in the Bail Application, particulary to the effect that there is no direct evidence which is available against him on the records in order to establish beyond doubt, his direct involvement in the commission of the offence, as was complained of by the complainant in the FIR on 2nd August 2020.
6. He further submitted that there is a massive contradiction in the statement, which has been recorded, because the FIR speaks about that there was one motorcycle, which overtook the motorcycle of the complainant, which the injured was riding and later on during the course of investigation, it was found that there were two motorcycles, which were allegedly shown to be involved in commission of the offence.
7. The learned counsel for the applicant submits in his arguments, that the prosecution has failed to produce any evidence against him in support of the set of allegations as it had been allegd in the FIR, for the reason being that if the set of allegations in the FIR, are taken into consideration, no offence as such under Sections 394 and 397 of the IPC, could be said to be made out against him.
8. In para 10 of the Bail Application, the applicant had pleaded that the applicant, has not been identified by the complainant in accordance with law of evidence, and he has submitted that since the present applicant cannot be said, has fired the shot on the victim, the allegation in the FIR, pertaining to the commission of offence under Section 307 IPC, are per se false and they are not made out, and hence he has been falsely implicated and thus he deserves to be enlarged on bail.
9. Another ground, which has been argued by the learned Counsel for the applicant for considering the Bail Application is that he has the criminal history, as he is shown to be involved in Case Crime No. 296 of 2020, for the commission of offences under Section 380, 411, 457 and 34 IPC, which was registered against him at Police Station Vikas Nagar, District Dehradun, his argument is that, the said criminal history would be of no relevance for considering his present bail application.
10. He further submitted, that since he is languishing in jail ever since 5th August, 2020, though there is no specific material available against him on record, his Bail Application deserves to be granted.
11. He further submitted that he deserves a parity in consideration of his bail application as the other two co-accused persons, namely Narendra and Kapil, who too were later on, during the course of investigation were found to be involved in the commission of the offence complained of against the applicant, they have been granted bail by the Co-ordinate Bench of this Court in Bail Application No. 228 of 2020, vide its order dated 10th December, 2020, and Bail Application No. 2549 of 2020 vide its order 4th January, 2021 and hence, he submits that on the ground of parity too, his bail application deserves to be granted.
12. The aforesaid contention is being vehemently opposed by the learned Government Advocate, on the basis of the averments which has been specifically pleaded in response to the Bail Application, in the counter affidavit and has argued that the argument which had been extended by the learned counsel for the applicant pertaining to, that there was no identification of the applicant, establishing to be involved in the commission of offence, is perse false for the reason being that the identification parade was carried and as per report by way of Form-55, the identification parade, which was conducted on 5th September 2020, the victim Shankar, had identified the present applicant to be the actual person, who had fired at him and hence, he submits that the argument extended by the applicant's Counsel, that there was no identification, that cannot be accepted, because the injured victim had identified him as to be the assailant.
13. The learned Government Advocate has further argued that even if the Recovery Memo No. 1, is taken into consideration, which has been appended as annexure-5 to the counter affidavit, it was rather the applicant himself, who had taken the police party to the place from where, the alleged 315 bore, country made pistol was recovered from the said place, which was alleged to have been used in the commission of offence, complained of.
14. The learned Government Advoate, further submitted, that the said weapon i.e. the country made pistol, which was allegedly used in the commission of the offence complained of was sent to the Forensic Laboratory, Uttrakhand and a report, being FSL report No. 1345/20/BA- 67/20, was submitted by the laboratory, where the report has fortified the fact that it was same weapon, which was used in the commission of the offence, which was complained of in the FIR. Hence, in a nutshell, the Government Advocate, wanted to contend that since the weapon was recovered on the pointing out of the applicant, the use of the weapon in the commission of the offence was established by the Forensic Laboratory, report dated 30th September 2020, and also that since in the identification parade the victim had specifically identified the applicant to be person who had fired at him, he submits that there is a direct involvement, which stands established as of now, as against the present applicant in the commission of the offence.
15. In addition thereto, he has also placed reliance on the supplementary medical report which was submitted by the Medical Officer of Synergy Hospital, where the victim was placed under medical treatment and the Doctor attending him, while issuing the supplementary report on 31st August 2020, has opined that the injuries suffered by the victim was grievous in nature, and dangerous to life.
16. The argument of the learned counsel for the applicant on the contrary is from the perspective, that the recovery made of the weapon used in the commission of the offence on the pointing out of the applicant will not satisfy the ingredients which are contemplated, under Section 25, to be read with Section 27 of the Evidence Act. The relevant provisions of Sections 25 and 27 of the Evidence Act are referred to hereunder:-
"25. Confession to police officer not to be proved. - No confession made to a police officer, shall be proved as against a person accused of any offence.
27. How much of information received from accused may be proved. - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
17. He submits that in view of the decision rendered by the Division Bench in Criminal Appeal No. 179 of 2010, Raju Vs. State of Uttarakhand, the Division Bench, in its judgement which was rendered on 11th December, 2014, had opined that the weapon recovered by the police party, on the information received by the accused himself, would not amount to satisfy the terms and conditions as contained under Section 25 to be read with Section 27 of the Evidence Act, and hence, he submitted that at thisstage of bail, it cannot be said that Section 27 of the Evidence Act, cannot be pressed into by the prosecution for the purposes of establishment of offence merely on the ground of recovery of the weapon used in the commission of offence on the pointing out of the accused person, i.e. the applicant herein.
18. As far as the present bail is concerned, this Court is of the view, that as far as the aspect of direct involvement of the the applicant in the commission of the offence stands established, not only exclusively on the basis of the recovery of the weapon made at the pointing out of the applicant; but rather also from the identification parade report, which was carried under Section 54A of the Cr.P.C., to be read with Section 9 of Evidence Act, where the injured had identified the applicant as to be the person who was actually involved in firing a shot, from his country made pistol. In the Division Bench judgement, the accused involved in the said case had rather made a confessional statement, while pointing out the place where he had kept the weapon, which was used in the commission of the offence, it was a Criminal Appeal, questioning the judgement of conviction dated 31.07.2010, where the impact of Sections 25 and 27 of Evidence Act, was put to consideration.
19. Tentatively at this stage, this Court may not be much concerned with regard to the principal propounded by the Division Bench judgement pertaining to the implication of Section 25 to be read with Section 27 of the Indian Evidence Act, as it related to an interpretation of confessional statement only, for the reason herein being, that in the instant case the very fact of the identification made by the victim of the present accused applicant, having actually fired upon him, coupled with the fact that the FSL report also supports the prosecution story, where the weapon, which was allegedly recovered was shown to be established to be involved in the commission of the offence. As such, the Division Bench judgment cannot be made applicable in the circumstances of the present case.
20. As far as the aspect of parity is concerned, which has been claimed by the applicant on the basis of the bail orders granted to the co-accused person by the Coodinate Bench of this Court vide its order 10th December, 2020 and 4th January, 2021 (as referred above), this Court is of the view that no parity as such based on the aforesaid two orders could be extended, to the applicant for the reason being, that the claim of parity is not of right, but also a comparative role too, the the other co-accused persons namely Narendra and Kapil, their role allegedly involved in the commission of the offence and the grant of bail by the Co-ordinate Bench of this Court; was exclusively confined on the ground and basis that no recovery, was made from them and further that they were not shown to be in possesson of any weapon, which was said to have been used in the commission of the offence on 1st August, 2020.
21. On the converse, the case of the applicant would fall to be outside the ambit of parity too for the reason being that based on the identification parade report dated 05.09.2020, the FSL report dated 30.09.2020, the medical report dated 31.08.2020, and recovery memo dated 04.08.2020, it shows the direct engagement of the applicant in the commission of the offence and hence, the parity invariably in all criminal cases cannot be extended particularly when the involvement and role assigned to the applicant in the commission of the offence is distinguishable under the facts and circumstances of the case and particulary the evidence, which has been made available on record.
22. In that view of the matter, this Court is of the view that the applicant is not entitled to be granted bail.
23. Accordingly the Bail Application, for the reasons aforesaid, stands rejected.
24. However it is made clear at this stage, that whasoever observation has been made by this Court while rejecting the bail application of the present applicant, is exclusively tentative in nature only for the purposes of considering the bail application and it is specifically made clear that the same should not produce the minds of the Trial Court, while conducting the trial itself, which is to be conducted independent; to the today's order.
(Sharad Kumar Sharma, J.) Dated 20.05.2021 Shiv