Allahabad High Court
Vishal Singh vs State Of U.P. on 10 January, 2019
Author: Harsh Kumar
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 45 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46987 of 2018 Applicant :- Vishal Singh Opposite Party :- State Of U.P. Counsel for Applicant :- Manish Kumar Tripathi,Sri Kamal Krishna, Senior Advocate Counsel for Opposite Party :- G.A.,S.K.Rao,Vinay Singh Hon'ble Harsh Kumar,J.
Heard Sri Kamal Krishna, learned Senior Advocate assisted by Sri Manish Kumar Tripathi, learned counsel for applicant, Sri O.P. Singh, learned Senior Advocate assisted by Sri Vinay Singh, learned counsel for first informant, learned A.G.A. and perused the record.
Learned counsel for the applicant contends that applicant has been falsely implicated in the rejoinder F.I.R. lodged under Section 363 I.P.C. on 5.4.2018 with some ulterior motive in connivance with Virendra Pratap Singh, the first informant of Case Crime No.84 of 2018; that above rejoinder F.I.R. has been got lodged through Mukesh Kumar Singh on 5.4.2018 at 9:36 a.m. under Section 363 I.P.C. with averments that on 4.4.2018 at about 7:00 p.m. Manoj Kumar, Manish Kumar Singh and applicant Vishal Singh fetched Avinash Singh and when he did not return, upon asking accused persons told that he will come after a short while so the information is being given as the entire family is under tension; that it is noteworthy that on 5.4.2018 at 1:07 a.m. one Virendra Pratap Singh lodged F.I.R. against five named and five unnamed persons including applicant for the incident of 7:45 p.m. on 4.4.2018 at Mirshadpur Petrol Pump, Jaunpur with averments that applicant and his associates total 10 persons indiscriminately fired after stopping their vehicles, resulting in death of Akhilesh Yadav Pradhan at the spot and grievous injuries to first informant Virendra Pratap and Atul Yadav; that post-mortem report of Akhilesh Yadav shows that in above case of alleged indiscriminate firing by as many as 10 persons, he succumbed to solitary fire arm injury while first informant Virendra Pratap sustained two lacerated wounds while Atul Yadav did not sustain any injury; that the real fact is that on 4.4.2018 at about 7:45 p.m. when applicant, his wife Manisha and two others were going by their vehicle driven by their driver Avinash Singh son of Hemant Singh, Yogesh Yadav and his associates on two vehicles tried to stop their vehicle however they managed to escape but by the time of they arrived at Mirshadpur petrol pump his vehicle was stopped by miscreants and after getting down Avinash Singh, driver from vehicle they shot him dead, upon which applicant and others taken him to Pratapgarh from where doctor referred him to Allahabad and during treatment at Swaroop Rani Nehru Hospital, Allahabad he died; that in above incident of 7:45 p.m. dated 4.4.2018 in which murder of applicant's driver Avinash Singh was committed by Yogesh Yadav and his associates of which F.I.R. was lodged by applicant's wife at Case Crime No.85 of 2018; that as a matter to counter-blast F.I.R. of Case Crime No.85 of 2018, the first informant of Case Crime No.84 of 2018 very cleverly got lodged rejoinder F.I.R. of this case under Section 363 I.P.C. with absolutely false and concocted story and ulterior motive in connivance with Mukesh Kumar Singh (brother of Avinash Singh deceased); that first informant of this case and first informant and witnesses of Case Crime No.84 of 2018 are in hands in gloves with each other; that upon issuance of warrants to accused persons in Case Crime No.85 of 2018, a writ petition was filed by first informant of this case and an order dated 10.5.2018 was obtained for fair investigation of Case Crime No.86 of 2018; that in furtherance of as well as in garb of above order the Investigating Officer acting very unfairly undue influence of (i) first informant of this case, (ii) first informant and witnesses of Case Crime No.84 of 2018 and (iii) accused persons of Case Crime No.85 of 2018, wrongly, suo motu amalgamated Case Crime No.85 of 2018 with Case Crime No.86 of 2018 and converted present Case Crime No.86 of 2018 from Section 363 I.P.C. to one under Sections 364 & 302 I.P.C. vide C.D. Parcha 12 dated 6.6.2018; that it is noteworthy that in his initial statement under Section 161 Cr.P.C. recorded on 4.5.2018 first informant Mukesh has stated that ^^..........gekjs nwljs HkkbZ vk'kh"k dqekj flag us yxHkx 9-30&10 cts jkr dks vius eksckbZy ls vfouk'k ds eksckbZy ij VsyhQksu fd;s rks og fLop vkWQ Fkk] rc eukst dqekj flag ¼co-accused½ ds eksckbZy ij Qksu fd;k] rks crk;s fd dgha Hkstk gwWa] vHkh vk tk;saxsA jkr yxHkx 11-00 cts esjk HkkbZ vk'kh"k dqekj flag eukst ds ?kj x;k] rks HkhM+ yxh FkhA ogha irk pyk fd esjk HkkbZ xksyh yxus ds dkj.k e`r gks x;kA lwpuk ij ?kj ds lHkh yksx jksus fpYykus yxsA fdlh dks dqN le> esa ugha vk;kA rc eSa o jkts'k dqekj flag o fouksn dqekj flag rhuksa yksx Fkkus x;sA dksroky lkgc ugha feysA lqcg nksckjk x;kA ;g eqdnek fy[kk;kA blls iwoZ lqcg Fkkus ij ¼Sic½ crk;k Fkk fd esjs HkkbZ dk 'ko Lo:i jkuh vLirky bykgkckn esa ykokfjl fLFkfr esa iM+k gSA rc ge o gekjs laca/kh Lo:i jkuh vLirky bykgkckn x;s] irk pyk fd esjs HkkbZ dks xksyh yxus dh n'kk esa fnyhi 'kekZ ds }kjk nkf[ky fd;k x;k gSA** (copy supplied by learned A.G.A. during arguments and taken on record.) It was further contended by learned counsel for applicant that from above statement of first informant under Section 161 Cr.P.C. it is very much clear that prior to lodging of F.I.R. of Case Crime No.86 of 2018 he was fully aware of death of his brother Avinash Singh at the hands of accused persons of Case Crime No.85 of 2018 and his family members were weeping since 11:00 p.m. on 4.4.2018, yet in order to shield and support the first informant of Case Crime No.84 of 2018 as well as accused persons of Case Crime No.85 of 2018, he in order to cause prejudice prosecution of Case Crime No.85 of 2018 deliberately and very dishonestly concealing truth showing ignorance from death of Avinash by accused of Case Crime No.85 of 2018, lodged a false F.I.R. under Section 363 I.P.C. with concocted story; that subsequently in his additional statement under Section 161 Cr.P.C. recorded on 31.5.2018 first informant by making several material improvements, disclosed alleged dispute between applicant and persons of Yadav group stating that the fact of death of Avinash Singh concealed by applicant, who had allegedly fetched him in pre-planned manner though taken his injured brother to Pratapgarh and then to Swaroop Rani Nehru Hospital, Allahabad without any information to him; that it is wrong to say that on the night of incident applicant and his associates murdered Akhilesh Yadav and caused injuries to Virendra Pratap Yadav and also shot dead Vishal Singh to give colour to the incident and make a cross case and lodged F.I.R. of Case Crime No.85 of 2018 through wife of applicant; that it is also noteworthy that Virendra Pratap Yadav, the first informant and injured witnesses of Case Crime No.84 of 2018 in his statement under Section 161 Cr.P.C. recorded on 5.4.2018 (copy at page 83) stated about the murder of Akhilesh Yadav and injuries to himself by indiscriminate firing of 10 persons but subsequent to lodging of F.I.R. of Case Crime Nos.85 of 2018 and getting lodged a false F.I.R. of Case Crime No.86 of 2018, in his statement under Section 161 Cr.P.C. dated 11.7.2018 recorded in this Case Crime No.86 of 2018, (copy at page 36-37 of paper-book) the same person by way of improvements stated that in order to make a cross case applicant upon exhortation by Manoj and Manish, fired in the abdomen of Avinash Singh from a point blank range, which shows the plight of falsehood of Virendra Pratap Singh and unfairness on the part of I.O.; that the statement of Virendra Pratap Singh dated 11.7.2018 may not be relied in view of his earlier statement dated 5.4.2018; that it is also noteworthy that I.O. acted wrongly in recording statements of alleged eye witnesses of Case Crime No.84 of 2018 Atul Yadav @ Popo and Rahul Yadav with inordinate delay of about 2 months on 11.6.2018 and 6.6.2018 respectively; that it is absolutely wrong and highly improbable that deceased was fetched by applicant under the plan that at about 7:45 p.m. when he and his associates will commit murder of Akhilesh Yadav, they will also cause death of Avinash Singh in order to save themselves from prosecution for murder of Akhilesh Yadav as well as to falsely implicate victims and their associates; that deceased was driver of applicant and applicant may not have any motive to cause his death; that the fact that deceased was driver of applicant has been deliberately concealed by the first informant Mukesh Kumar Singh; that in false F.I.R. it has not been disclosed as to why deceased was fetched by applicant and associates, however in his statement under Section 161 Cr.P.C. he has developed a new story that he was fetched for settling accounts of sand/cement; that it is also noteworthy that at the end of his statement dated 4.5.2018 in answer to question as to whether the above sand/cement was brought on guarantee of Manoj, he replied that it was brought on cash payment of Rs.90,000/- and when he was further asked that then why Manoj would fetch deceased Vishal Singh, he remained silent; that Avinash Singh succumbed to fire arm injury caused by accused of Case Crime No.85 of 2018 and applicant may not be considered to be author of his fatal injury; that it is wrong to say that applicant concealed any facts from first informant Mukesh Kumar; that statements of Virendra Pratap Singh, Atul Yadav and Rahul Yadav are false and can not be considered to be relied; that co-accused Manish Singh with identical role, has been granted bail by another Bench of this Court vide order dated 8.10.2018 passed in Criminal Misc. Bail Application No.36888 of 2018, copy filed at Annexure-16 and it is wrong to say that case of applicant is distinguishable from him, as role of firing has been falsely and subsequently assigned to him as a matter of afterthought; that applicant has no criminal history; that applicant undertakes that he will not misuse the liberty of bail; that applicant is in custody since 13.4.2018.
Learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer of bail and contended that first informant Mukesh Kumar Singh has no concern with Virendra Pratap Singh first informant of Case Crime No.84 of 2018 or eye witnesses of above case; that deceased was innocent person and was fetched by applicant, Manish and Manoj in planned manner for causing his death for making cross case against Yadav group; that applicant in order to avoid punishment for murder of Akhilesh Yadav and injuries to Virendra Pratap Singh in Case Crime No.84 of 2018, shot dead Avinash during incident and despite lodging of F.I.R. through his wife at 4:36 a.m. at Case Crime No.85 of 2018 did not disclose the fact of death of Avinash Singh to first informant and family members; that co-accused Manish Singh has been granted bail distinguishing his case from applicant and so also the applicant is not entitled for bail.
In reply to the submissions made by learned Senior counsel for first informant, learned counsel for the applicant submitted that it is wrong to say that the fact of injuries or death of Avinash Singh at the hands of Yogesh Yadav and his associates at about 7:45 p.m. on 4.4.2018 was not disclosed to first informant or his family members rather they were immediately informed and prompt F.I.R. was lodged by applicant's wife; that at the time of lodging of F.I.R. under Section 363 I.P.C. Mukesh Singh was fully aware of entire incident as well as death of Avinash and concealed the correrct facts upon being misguided and lured by Virendra Pratap Singh group; that applicant may not be considered to be the author of fatal and single gun shot injury sustained by Avinash Singh deceased and his case is not distinguishable from Manish Singh.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment, grant of bail to co-accused as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicant Vishal Singh be released on bail in Case Crime No. 86 of 2018, under Sections 364, 302 I.P.C., P.S. Badlapur, District Jaunpur, on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 10.1.2019 Kpy