Allahabad High Court
Pankaj Mishra @ Pankaj Kumar Mishra vs State Of U.P. & Anr. on 12 July, 2021
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 29 Case :- BAIL No. - 3991 of 2020 Applicant :- Pankaj Mishra @ Pankaj Kumar Mishra Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- Rajesh Kumar Singh Counsel for Opposite Party :- G.A.,Vineet Kr Mishra (In chamber) Hon'ble Vikas Kunvar Srivastav,J.
The case is called out through video conferencing.
Learned counsel for the bail-applicant Sri Rajesh Kumar Singh, Advocate, learned counsel for the complainant Sri Vineet Kumar Mishra, Advocate and learned brief holder for the State Ms. Anupriya Jaiswal, Advocate are connected through video conferencing.
The present bail-application is moved on behalf of accused-applicant-Pankaj Mishra @ Pankaj Kumar Mishra, involved in Case Crime No.345 of 2019, under Sections 147, 148, 149, 302/34 of I.P.C. and Section 7 of Criminal Law Amendment Act, registered at Police Station Munshiganj, District Amethi.
The occasion of present bail-application has arisen on rejection of bail plea of accused-application by learned Additional Sessions Judge, Court No.1, Sultanpur vide order dated 11.02.2020.
On perusal of first information report dated 04.09.2019, lodged by the father of the deceased of incident dated 04.09.2019 at about 06:30 A.M., the statements of witnesses recorded by the Investigating Officer, the inquest report, made annexure no.5 with the bail-application alongwith sight map and after perusal of counter affidavit filed by the complainant and the State in protest of the bail-application, materials annexed therewith and heard the rival contentions of the contesting parties. The present accused-applicant, who is arraigned with offence under Sections 147, 148, 149, 302/34 of I.P.C. and Section 7 of Criminal Law Amendment Act is stated to have committed offence alongwith his companions, the co-accused Babban @ Dharmendra Mishra, Pappu Mishra, Santosh Pandey and four others unknowns, who were armed with fire arms in their hand, attacked the deceased Neeraj Pandey by making quick witted fire on him and done him to death.
Hearing the noise of firing, people of the locality including the witnessed named in the first information report, Virendra Mishra, Rakesh Mishra and others ran to the spot of incident. The accused fled away on their motor bikes from the spot of incident seeing people rushing upto them. The inquest report and post mortem report both have noted multiple injuries on the body of the deceased. The anti mortem injuries reported in the post mortem report are as follows:-
"1A-Firearm entry wound 1.0 X 1.0 cm X bone deep present on Rt side of face 4.0 cm from Rt ear lobule Margin inverted & irregular colour of abrasion of present blackening present.
1B-Firearm exit wound size 2.0 X 2.0 cm. present on Lt side of face 2.0 cm from left ear margin....and regular.
2-Firearm wound entry size 1.5 cm. X 1.5 cm. X muscle deep present on Lt. side of upper lip 2.0 cm medial to Lt angle of mouth. Margin inverted and irregular colous of abrasion....is present blackening & tattooing present.
3A-Firearm entry wound size 1.0 X 1.0 cm X cavity deep present in front of abdomen at midline 5.0 cm. above umblius margin inverted colous of abrasion is present.
3B-Forearm wound size 3.0 X 3.0 cm. present in Rt flank 20.0 cm. below inferior angle of scapule 6.0 cm. lateral to spine of L5 verbal margins enverted.
4A-Fire arm entry wound of size 1.0 X 1.0 cm. present on lateral side of lower chest 24.0 cm. for centre of L. axial at level of 101 rib colour of abrasion tattooing and blackening present.
4B-Firearm wound of exit size 1.5 X 1.5 cm. present on Rt sixe of abdomen 6.0 cm. above and ......16 umblius @ 11 o'clock margin everted.
5- Firearm entry wound size 1.0 cm. x 1.0 cm. present on medical aspect of Lt. forearm 2.0 proximal to Lt. wrist joint margin inverted & irregular colour of abrasion is present underlying mandible fractured on both side.
6- Lacerated wound of size 1.0 X 2.0 cm. X bone deep present on L side forehead.
7- Lacerated wound of size 1.5 cm. X 0.5 cm X bone deep on Rt. Parcital region 10 cm. above Rt. ear.
8. Lacerated wound 15.0 cm X 1.0 cm X bone deep present on L Teporal region of head 6.0 cm. above Lt. ear.
9- Lacerated wound of 6.0 cm X 1.0 Cm. X bone deep on top of head.
10- Lacerated wound 3.0 X 2.0 Cm X bone deep present on Lt. side of lower lip.
11. Lacerated wound size 4.0 X 3.0 cm. present on base of Lt. thumb.
12. Lacerated wound of size 3.0 X 2.0 present on Rt. Thumb and 6 ring finger terminal part of R. Thumb is missing.
Opening Echymosis is present under need all above evolved injury 1 to 12 two metallic bullets recovered from injury no.2 and injury no.5. Liver, mesentry and mesenteric vessels are lacerated about 2......of clotted and fluid mixed blood present in abdomen cavity. Layrnx and esophygus is lacerated about 300 ml blood mixed fluid present in stomach lower end of radius of Lt. hand fractured and upper end of Rt. Ulna fractured underneath contusion 8.0 cm X 6.0 cm. present on L elbow. Eechymosis present underneath Xray done at KGMU mortuary Lucknow in 5 X ray plae one metallic bullet seen in Arg of face and one metallic bullet seen in Xray of Lt forearm both bullet recovered and sent to SSP Lucknow in sealed envelope through CP concerned alongwith sealed bundle of clothes.
The sight map prepared by the Investigating Officer shows the spot of incident. The place of incident is shown on Dakhipur Road proceeding towards Tekasi Jungle road from west to east abutting to Southern side of the road is the house of present accused-applicant-Pankaj Mishra @ Pankaj Kumar Mishra. The informant of the case, father of the deceased is also shown in the sight map to have watched the incident from place B, which is 55 steps away from the spot of incident.
The witness named in the first information report are also examined by the Investigating Officer, Virendra Mishra and Rakesh Mishra whose statement has found place in the counter affidavit, submitted by the State as CA-3. Both the witnesses have witnessed the presence of accused-applicant at the spot of incident and their involvement in the incident alongwith other accused.
Learned counsel for the bail-applicant argued that there is general allegations as to the commission of offence against the accused persons named in the first information report with some unknown persons. The incident reported in the first information report dated 04.09.2019 at 06:30 A.M. is nothing but a false implication against the present accused-applicant. The informant, father of the deceased is not an eye witness, he reached at the spot after occurrence had occurred. Likewise, the witnesses named in the first information report are preplanned, as they are relatives of the informant. The reason of false implication as argued by him that the informant Ram Asrey Pandey and the witness Virendra Mishra murdered the brother of present accused-applicant namely Vinay Mishra on 16.08.2017, an F.I.R. was lodged under Case Crime No.638/2017, under Section 302 of I.P.C., therefore when some unknown persons by reason of enmity with the deceased and the informant committed murder, the name of present accused-applicant is given in the first information report maliciously. As such, the accused-applicant deserves to be released on bail, as the prima facie case of the prosecution against the present accused-applicant is not established by reason of lack of evidence and falsity of the case as well as the manipulated witness.
Lastly, learned counsel argued that when the accused was arrested by the police, the arrest memo shows that no recovery of weapon, any other incriminating article, the murder weapon like fire arm is recovered from him.
Opposing the bail application, learned brief holder for the State Ms. Anupriya Jaiswal submitted that the police getting the F.I.R. lodged, done the inquest proceeding without any delay, collected the opinion from witnesses of the inquest and referred the body for the post mortem. The post mortem examination is done on 04.09.2019 by the Doctors of hospital K.G.M.U., Lucknow. The proceeding of inquest is done promptly and multiple injuries were found including the fire arm injuries on the body of the deceased. The post mortem report also shows the severe multiple injuries of fire arms more than five and other injuries, which affirms the information of attack by the named accused alongwith other unknown companions making quick witted firings upon the deceased.
Learned brief holder further argued that so far as the identity of the accused-applicant is concerned, the statement of witnesses as annexed in the counter affidavit. Without any contradictions, they have identified the present accused-applicant alongwith other accused, armed with country made pistols involved in incident dated 04.09.2019. Learned brief holder further submitted that the present accused-applicant is a person of criminal nature.
Learned counsel for the complainant protested the learned counsel for the accused-applicant's argument about the falsity of case and lack of credible witnesses by saying that the sight map, the inquest report, post mortem report are sufficient in confirmation of the incident reported in the first information report and so far as the presence and identification of the present accused-applicant involved in the incident and presence on the spot of incident is concerned, the incident was so violent, brutal and gruesome that none amongst the people dared to come forward as witness. So far as Virendra Mishra and Rakesh Mishra are concerned, they being in relation with the victim rushed towards the spot to rescue on hearing the noise of fire, hue and cry. This is quite natural, the credibility of witness cannot affect by reason of their being relatives. Their credibility may be scrutinized at the time of cross-examination before the Court in the course of trial, prima facie the witnesses are competent, credible and reliable, therefore, prima facie the case of prosecution is well established against the accused-applicant with regard to his involvement in the crime, his presence on the spot on relevant time and date as well as committing offence in consult with other co-accused.
On hearing the arguments and the perusal of the documents when the role of accused-applicant is considered, the first thing is that he is arraigned with other co-accused under Sections 147, 148, 149, 302/34 of I.P.C. for committing offence under Section 302 of I.P.C. The argument of learned counsel for the accused-applicant is useless in view of the fact established by prima facie evidences that he was present at the relevant time and date on spot of incident alongwith other co-accused having fire arms to attack with quick witted firing upon the deceased. Whatever role he might have discharged in the commission of offence in consortium with other co-accused, which cumulatively resulted into the death of the deceased brutally, the responsibility of the accused-applicant cannot be severed with others.
The argument of learned counsel with regard to the benefit of parity in grant of bail to other co-accused namely Anil Kumar @ Dabang vide order dated 13.01.2021, Shivank @ Shivang Mishra vide order dated 22.05.2020 and Santosh Pandey vide order dated 17.03.2021 is concerned, the Anil Kumar @ Dabang and Shivank @ Shivang Mishra were not named in the F.I.R. and their name came into light from confessional statement of co-accused. Neither their name nor their role is specified by the informant or witnesses in the case. So far as the role of Santosh Pandey is concerned, there is no agreeable reasons for the purpose of grant of parity. Moreover, the motive of the offence is also impliedly admitted by the accused-applicant, as his brother was murdered allegedly by the father of the deceased, the enmity is double edged weapon for false implication against the accused-applicant as well as for motive of taking revenge against the deceased and his father.
Keeping in view the entirety of facts as emerging from the statements of witness annexed with the affidavit in support of the bail-application, they are sufficient together to show, the accused-applicant is capable of tampering the evidences and affect the witness adversely.
On the basis of above discussions, I find no force in the submission of learned counsel for the bail-applicant and the bail-application is rejected at this stage.
Learned court below is directed to expeditiously proceed with the trial of the case and to record statements of the complainant and other material witness of facts as soon as practicably possible, within one year from the date, certified copy of the order is placed before it.
After recording of the statements, the learned trial court is directed to communicate this court also about the proceeding within the aforesaid prescribed period of one year.
Order Date :- 12.7.2021 Saurabh