Madhya Pradesh High Court
Lucky @ Azaj Khan vs The State Of Madhya Pradesh on 5 May, 2017
MCRC-4934-2017
(LUCKY @ AZAJ KHAN Vs THE STATE OF MADHYA PRADESH)
05-05-2017
Shri B.J. Chourasiya, counsel for the petitioner.
Shri D.K. Paroha, Panel lawyer for the respondent-State.
Heard on this second application for bail under Section 439 of the Cr.P.C. filed on behalf of petitioner Lucky @ Azaj Khan in Crime No.433/2016 registered by Police Station City Kotwali, District-Damoh under Sections 147, 148, 149, 323, 307 and 302 of the I.P.C. and Section 25 (B) of the Arms Act, 1959.
His first application for bail was dismissed as withdrawn by order dated23-11-2016 passed in M.Cr.C. No. 20270 of 2016, with liberty to renew prayer at a later stage of the sessions trial.
By way of change in circumstances for this second application it has been submitted that similarly placed co-accused Wasim @ Raja has been released on bail by order dated 18-4-2017 passed in M.Cr.C. No. 6148 of 2017.
As per the first information report lodged by the injured Dharmendra Shrivastava, he had given a party in Royal Bar on the occasion of his birthday on 18.07.2016. At about 12.15 p.m., he and his friends Ashish Mishra, Chandan Singh Solanki, Gaurav @ Shiva Yadav, Bharat Soni, Amit Soni, Sujeet Raj, Sachin Sagar, Vivek Shrivastava, Neeraj Patel, Amit Khare and Om Pathak etc. were coming out of the Bar after the party. At that time, an altercation took place between his friends and accused persons Shiva Raikwar, O.K. Raikwar and Mayank Agrawal and three other boys. Pursuant to aforesaid altercation, accused persons brought out the spring actuated knifes from their pockets and assaulted Gaurav @ Shiva Yadav, Bharat Soni, Amit Soni and Ashish Mishra. As a result, aforesaid four persons suffered incised wounds to their chest and stomach. Bharat Soni was severely injured and his intestine was exposed. Later that night, Bharat Soni succumbed to his injuries.
Learned counsel for the petitioner submits that the name of the petitioner Lucky does not figure in the first information report and though, his presence on the spot has been shown in the statement under Section 161 of the Cr.P.C. by Gaurav @ Shiva Yadav, Amit Soni, Ashish Mishra, Devendra Rathore, Om Pathak, Ashutosh @ Ashu and Sachin Sagar, these witnesses have stated that Sharad Basod, Raja Khan and Lucky Khan were terrorizing the members of victim's party by brandishing knifes; as such, even in the statements under Section 161 of the Cr.P.C., none of the prosecution witnesses have stated that the petitioner Lucky assaulted anyone with a knife. It has further been submitted that in the statements under Section 164 of the Cr.P.C., witnesses Dharmendra Shrivastava and Amit Soni have stated that the petitioner Lucky had assaulted Amit Soni with knife, whereas Gaurav @ Shiva Yadav has stated that Lucky Khan and Raja Khan had caught hold of him. However, it may be noted that the statements under Section 164 of the Cr.P.C. were recorded more than a month after the date of the incident; therefore, it has been prayed that the petitioner Lucky be released on bail. Learned panel lawyer for the respondent State on the other hand has opposed the application; however he has failed to point out any difference between the cases of petitioner Lucky and released co-accused Wasim.
Keeping in view the facts and circumstances of the case in their entirety particularly the facts that:
1. the name of the petitioner Lucky does not figure in the first information report;
2. his name figures in the statement of numerous eye witnesses under Section 161 of the Cr.P.C.;
3. the role that has been ascribed to the petitioner is confined to the fact that he was brandishing his knife and terrorizing the members of the victim party;
4. only witnesses namely Dharmendra Shrivastava and Amit Soni have stated under Section 164 of the Cr.P.C. that the petitioner Raja @ Wasim Khan had assaulted Amit Soni with a knife but the statements of this witnesses under Section 164 of the Cr.P.C. was recorded more than a month after the date of the incident and Dharmendra had not mentioned the name of the petitioner in the FIR;
5. the petitioner has been in custody since 09.09.2016;
-in the opinion of this Court, petitioner deserves to be released on bail.
Consequently, this second application for bail under Section 439 of the Cr.P.C. filed on behalf of petitioner Lucky @ Azaj Khan is allowed.
It is directed that the petitioner shall be released on bail on furnishing a personal bond in the sum of Rs.80,000/- with a solvent surety in the same amount to the satisfaction of the trial Court for his appearance before that Court on all dates fixed in the case and for complying with the conditions enumerated under Section 437 (3) of the Cr.P.C. Certified copy as per rules.
(C V SIRPURKAR) JUDGE ahd