Allahabad High Court
Nirmal Kumar Singh vs State Of U.P. on 27 January, 2010
Author: Ravindra Singh
Bench: Ravindra Singh
1
Criminal Misc. Bail Application No. 11482 of 2009
Nirmal Kumar Singh ... ..Applicant
Vs.
State of U.P. .................... Opp. Party.
Hon'ble Ravindra Singh, J.
Heard Sri Virendra Bhatia, learned Senior Advocate, assisted by Sri Vijay Shanker Mishra, learned counsel for the applicant, learned A.G.A.for the State of U.P.and Sri T.P.Singh,learned Senior Advocate assisted by Sri Siddharth Nandan, learned counsel for the complainant and perused the record.
This bail application has been filed by the applicant Nirmal Kumar Singh with a prayer that he may be released on bail in case crime no. 388 of 2007 ( S.T.No. 520 of 2007) under sections 302/34, 307, 504 I.P.C., Police Station Kishni, District Mainpuri.
The facts, in brief, of this case are that the FIR has been lodged by Sunil Kumar against the applicant and 3 other accused persons on 26.5.2007 at 8.30 p.m. in respect of the incident which had occurred on 26.5.2007 at about 6.45 p.m., the distance of the police station was about ½ km from the place of occurrence. It is alleged that the first informant, the deceased Ashish alias Jitu, Rajbir, Mohar Singh and Babu Ram were going on foot from village Jijai to Kisnipur , when they reached near the gate of exhibition ( Mela) where the applicant armed with gun, co-accused Mahesh Pratap Singh alias Govind armed with revolver, co-accused Narain Pratap alias Pinku armed with revolver and Sachin Kumar armed with country made pistol were already standing there, at the exhortation of the applicant, the co-accused Mahesh Pratap alias Govind, caused injuries on the chest of the deceased by revolver, after sustaining the gun shot injury, the deceased turned back and started running, then the co-accused Narain Pratap alias Pinku also caused gun shot injury by discharging a shot by the revolver. The applicant and co-accused Sachin also discharged the shot indiscriminately.
After sustaining the injuries, the deceased Ashish alias Jitu fell down after covering a distance of 8 or 10 paces, at the hue and cry of the first informant and other, the people came from the exhibition side then the applicant and co- accused persons ran towards North direction. The first informant and other persons came to the place where the deceased was lying, he was taken in a 2 vehicle to Etawah but he succumbed to his injuries on the way, then he was taken to Kisni. According to post mortem examination report, the deceased had sustained five ante mortem injuries in which injury no. 1 was abrasion on the left side fore head, injury no. 2 was abraded contusion on left side forehead, injury no.3 was fire arm wound of entry 1 cm. x 1 cm.x cavity deep on right side chest, no blackening and tattooing was seen, injury no.4 was abrasion, injury no.5 was fire arm wound of entry 1 cm. x 1 cm. into muscle deep over infra scapular region, no blackening and tattooing was seen, two metallic bullets were recovered from the dead body.
It is contended by learned counsel for the applicant that - (1) FIR of this case is ante timed, in fact, it was not lodged at 8.30 p.m., it was lodged thereafter, there are several cutting on the date and time, the copy of the FIR was not reached to the court of learned CJM Mainpuri immediately after lodging the FIR, it was lodged on
11..6.2007 after about 15 days of the alleged incident. The dead body of the deceased was displaced from the place of occurrence and it was brought to the house of the informant where the inquest report was prepared. It has been deliberately mentioned in the FIR that the deceased was taken to the hospital by a vehicle but he succumbed to his injuries on the way, it has been mentioned in the FIR only to show the presence of the witnesses, there is no material to show that deceased was taken by a particular vehicle even the number of the vehicle has not been mentioned, thus the vehicle was not examined by the I.O.and there is no evidence to show that any blood etc. was found in the vehicle by which the deceased was taken for the purpose of medical treatment.
(2) The deceased had been killed by some unknown persons, who could not be identified but on account of local party-bandi the applicant and his three persons have been mentioned in the FIR, the participation of the applicant in commission of the alleged offence is absolutely false and baseless. It is also surprising that according to the FIR, the applicant was also armed with gun but he did not cause any injury on the person of the deceased and at his exhortation, his sons, namely, Mahesh Pratap alias Govind, Narain Pratap alias Pinku caused injuries on his person.
(3) According to the prosecution version, the only role of exhortation is assigned to the applicant even according to the prosecution version, 3 he did not cause any injury to the deceased, the role of causing the injury to the deceased is attributed to the co-accused Mahesh Pratap alias Govind and Narain Pratap alias Pinku. It is alleged that the applicant and other co-accused Sachin also discharged the shots indiscriminately but did not cause any injury to the deceased or any other person.
(4) The presence of first informant, who is real brother of the deceased and other witnesses Rajbir who is also brother of the deceased, Mohar Singh, Babu Singh who are closely related to the deceased, is highly doubtful at the place of occurrence because according to the prosecution version also, no attempt was made by the accused persons to cause the injury on their persons whereas the first informant and his brother Rajbir were equally inimical. There is no injured witness.
(5) The prosecution story is not supported by post mortem examination report. The deceased had sustained five ante mortem injuries in which injury nos. 3 and 5 were fire arm wounds of entry, having the same dimension, both the injuries may be caused by the same fire arm, the injuries were not caused as alleged by the prosecution because according to the FIR, the injuries were caused from close range but none of the injuries was having blackening and tattooing, even none of the injuries was having the exit wound, it shows that the injuries were caused from a long distance. There is no explanation of the injury no.1 abrasion, injury no. 2 abraded contusion and injury no.4 abrasion. (6) The prosecution story is not corroborated by the spot inspection note and site plan. No blood was found at the alleged place of occurrence. Even the places of witnesses have not been shown in the spot inspection note, it also shows that the deceased was murdered on some other place, his dead body was taken to his house. (7) It is also surprising that no witness of the locality was interrogated by the I.O. even the owner of the shop of Chhola Batura which was near the place of occurrence has not been interrogated.
(8) There is no independent witness to support the prosecution story, the first informant and Rajiv are the real brothers of the deceased, the witness Mohar Singh and Babu Ram are residents of different place, they are closely related with the deceased. The statement of first informant was recorded under section 161 Cr.P.C. on the same day 4 but the statement of the witnesses Rajbir and Mohar Singh were recorded on 27.5.2007, the witness Babu Ram was recorded on 23.7.2007, the delay in interrogation also shows that the witnesses were not present at the place of occurrence.
(9) The applicant is too old person aged about 60 years and he is suffering from various diseases, due to local parti-bandi, he has been falsely implicated in the present case, he was also implicated in some other cases prior to the alleged incident but in none of the cases he has been convicted, he was acquitted in S.T.No. 213 of 1975 under section 302 I.P.C. by learned Sessions Judge, Mainpuri, he was acquitted for the offences punishable under section 307, 324, 506 I.P.C. in case crime No. 359 of 2007 , P.S.Kisni ( S.T.No. 479 of 2007) by learned Sessions Judge, Mainpuri on 20.8.2007, the proceedings under section 110 Gambling Act have been dropped by the SDM Bhogaon on 28.11.2006 and the proceedings under section 3(1) of U.P. Control of Goondas Act have also been dropped against the applicant by learned ADM Mainpuri on 19.9.2007, the trial of the applicant is in progress, the applicant and his three persons are in jail, there is no proper person in his family to look after the family affairs to do the proper pairvi in S.T. No.520 of 2007 on any condition, the applicant may be released on bail so that he may be able to do the pairvi on this case also.
In reply of the above contention, it is submitted by learned A.G.A. and learned counsel appearing on behalf of the complainant that the role of exhortation is assigned to the applicant, he was present at the place of occurrence, the alleged incident has been witnessed by the first informant and other persons. Receiving the injuries by witnesses to show their presence is not essential required. The witnesses present at the place of occurrence may sustain or may not sustain the injury but due to non- sustaining the injuries their presence may not be disputed. The applicant is the main person, he is having the criminal antecedent though he has been acquitted or discharged in some cases, but a case under section 304 I.P.C. and Explosive Act in case crime no. 96 of 2006 P.S.Kisni, District Mainpuri is still pending, his sons are also involved in criminal cases, the minor discrepancies or over writing in inquest report do not show that the FIR of this case is ante timed. The FIR has been promptly lodged and there was no 5 reason of false implication of the applicant. The bail application of the applicant and co-accused Sachin Kumar, who had also fired indiscriminately along with the applicant but did not cause any injury to any person, has been rejected by another bench of this Court on 10.8.2007 in Criminal Misc. Bail application no. 15525 of 2007 and his bail application has also been rejected on 16.7.2008 in criminal misc. bail application No. 26041 of 2007, the case of the applicant is on the same footing with above mentioned co-accused, he may tamper with the evidence, therefore, the applicant may not be released on bail.
In the rejoinder, it is submitted by learned counsel for the applicant that the P.W.1 has been examined before the trial court. There is no question of tampering with evidence even then, any condition may be imposed upon him.
Considering the submission made by learned counsel for the applicant, learned A.G.A.,learned counsel appearing on behalf of the complainant and from the perusal of the record it appears that according to the prosecution version, the applicant was armed with gun, the applicant and other co- accused persons were already standing at the place of occurrence for the purpose of committing the alleged offence, even then, the applicant did not cause any injury on the person of the deceased, the role of exhortation is assigned to the applicant and it is alleged that the applicant and other co- accused person Sachin discharged the shots indiscriminately, but nobody has sustained any injury. The applicant is an old man, aged about 60 years, his three sons are also in jail, the statement of PW 1 has been recorded by the trial court, the applicant is in jail since 5.6.2007, he did not cause any injury to the deceased, there is no injured witness in the present case, the role of causing the injury to the deceased is attributed to the co-accused Mahesh Pratap alias Govind and Narain Pratap alias Pinku who are sons of the applicant and the bail application of the co-accused Sachin, has also been rejected by another bench of this court, therefore, considering the role assigned to the applicant in commission of the alleged offence, the fact that his three sons are in jail, he is an old man aged about 60 years, allegedly suffering from various diseases and for doing the pairvi of this case which is at the stage of conclusion, but his case is distinguishable with other co- accused persons and without expressing any opinion on the merits of the case, the applicant is entitled for bail on some conditions.
Let the applicant Nirmal Kumar Singh involved in case crime no. 388 of 2007 ( S.T.No. 520 of 2007) under sections 302/34, 307, 504 I.P.C., 6 Police Station Kishni, District Mainpuri be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the Court concerned with the conditions.
1. That the applicant shall not tamper with the evidence.
2. That he shall report to the court of C.J.M. concerned in the first week of each month to show his good conduct and behaviour till conclusion of the trial.
3. That the applicant shall not enter into the territory of police station Kishni, District Mainpuri till the conclusion of the trial. In case of default of any of the above mentioned conditions, the bail granted to the applicant shall be deemed cancelled and he shall be taken into custody forthwith.
It is further directed that the proceedings of the Sessions Trial No. 520 of 2007 shall be expedited without granting unnecessary adjournments to either of the side.
Dated : January 27 , 2010.
SU