Allahabad High Court
Dr.Rajesh Pandey vs State Of U.P. on 8 February, 2013
Author: Sudhir Kumar Saxena
Bench: Sudhir Kumar Saxena
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH (A F R) (R E S E R V E D) Court No. - 23 Case :- BAIL No. - 6382 of 2012 Petitioner :- Dr.Rajesh Pandey Respondent :- State Of U.P. Petitioner Counsel :- Vaibhav Kalia,H G S Parihar,Rajesh Kumar,V K Shahi Respondent Counsel :- Govt.Advocate,K.K.Singh,Nisar Ahmad With Case :- BAIL No. - 7819 of 2012 Petitioner :- Awadhesh Kumar Tewari Respondent :- State Of U.P. Petitioner Counsel :- Pankaj Verma Respondent Counsel :- Govt.Advocate,K.K.Singh,Nisar Ahmad Hon'ble Sudhir Kumar Saxena,J.
1)Both these applications arise of the same crime, as such they are being disposed of by common order.
2)Applicants are involved in Case Crime No. 559 of 2012, under Sections 147,148,149,323,504,506,302,307 IPC, Police Station -Kotwali Nagar, District Gonda.
3)Briefly stated prosecution case is that on 08.05.2012 at about 12:30 P.M. Vaibhav(informant) was going with Gaurav(deceased) and other persons on jeep. Gaurav asked the driver to go to nursing home of Dr. Rajesh Pandey where guards Avdhesh and Suresh had some altercation with Gaurav and his associates on the question of parking of jeep. Dr. Rajesh Pandey called these people in his chamber, where co-accused Chandra Mohan Mishra, Vishwas Pandey, Pawan Mishra etc. were sitting. Both guards too reached in the chamber of Dr. Pandey who asked these people to behave otherwise they would be taught a lesson, which was objected by Gaurav whereupon Dr. Pandey exhorted, guards and other persons present there, who started beating Gaurav with butt of gun. His brother tried to save him, then Dr. Pandey snatched the gun from Awdhesh Tiwary and fired upon Gaurav. Further case in the FIR is that another guard also fired from his gun. Gaurav was rushed to district hospital and from there to Trauma Centre, Lucknow, but he died on the way. FIR was lodged on the same day at 6:05 P.M. Post-mortem was done on the same day, according to which one gun-shot injury was found on the body of the deceased. Case was registered against Dr. Rajesh Pandey and others and they were arrested.
4)I have heard Sri Mridul Rakesh, Sri Jyotindra Mishra, Senior Advocates, assisted by Sri Vaibhav Kalia for applicant Dr. Rajesh Pandey; Sri Pankaj Verma for Awadhesh Kumar Tewari and Sri I.B. Singh, Senior Advocate, Sri H.G.S. Parihar and Sri M.P. Singh for the complainant. Km. Nand Prabha has assisted the Court on behalf of State.
5)It has been contended on behalf of the applicants that admittedly occurrence has taken place in the chamber of Dr. Rajesh Pandey inside his nursing home. Deceased Gaurav accompanied by Vaibhav and others had gone to nursing home. When some altercation ensued between the guards, namely, Avdhesh and Suresh on the question of parking then all went to the chamber of Dr. Pandey. The altercation between these two sets led to firing by Vaibhav which resulted in gun-shot injury on the left forehead/eye which caused loss of vision to guard Suresh. Thereupon, Avdhesh Tiwary fired in self-defence causing injury to Gaurav who later on succumbed. Submission is that if a group of people comes to somebody's nursing home and fires upon the guard in his chamber, return firing was wholly justified in exercise of right of self defence.
6)It is further submitted by Sri Jyotindra Mishra that in the FIR there is no explanation of injuries caused to guard Suresh who has lost his eye. For the first time, in the statements under Section 161 Cr.P.C. which have been recorded much after the occurrence, explanation has come which too is self-contradictory. In the FIR, it is said that Dr. Rajesh Pandey snatched the gun of Avdhesh Tiwary and fired upon Gaurav and others. Other guard also fired shot. Other guard was Suresh who himself received a grievous injury on his left forehead and eye. Therefore, the allegation in the FIR that other guard had fired causing injury to himself is absolutely improbable. In the statement under Section 161 Cr.P.C., It has come that the first shot was fired by Dr. Rajesh Pandey upon Gaurav and second shot was fired by Avdhesh Tiwary which hit another guard Suresh on his forehead. It is said that even this statement makes the prosecution story unbelievable as gun of Avdhesh Tiwary had already been snatched by Rajesh Pandey, according to prosecution version. Gun of guard Suresh fell on the ground, says the statement under Section 161 Cr.P.C., therefore, there was no occasion for Avdhesh Tiwary to fire a shot upon guard Suresh. Submission of Sri Mishra is that cross-version (Crime No. 559-A of 2012) according to which first Vaibhav fired upon Suresh causing injuries on left forehead and eye, Avdhesh Tiwari returned fire which ultimately caused death of Gaurav, looks more probable.
7)It is also contended that father of the deceased is sitting MLA having sufficient clout, as such FIR on the version of Rajesh Pandey was not registered. Ultimately, he sent an application through jail to the court. Another application was allegedly given to Superintendent of Police which had also been received in the Police Station whereupon a cross-case bearing Case Crime No. 559-A of 2012 was registered. In this Court, it is contended that the application given to Superintendent of Police was although received late in the night while application sent through jail was received in the afternoon, but FIR was registered on the application given to Superintendent of Police, as such correct version has not come on record. It is further urged that since police was not doing fair investigation on the cross-version, a Division Bench of this Court directed the Superintendent of Police to ensure fair investigation by different Investigating Officer. Lastly, he concluded by saying that there is a cross-version, both the sides have received injuries, question of aggressor can be decided during trial. Applicant had exercised right of self defence contemplated under Section 97 IPC etc. Some decisions have also been placed by Sri Misra.
8)Sri I.B. Singh, learned Senior Advocate, has stated that the incident is of broad-day-light. Single shot has caused the death which has been fired by Dr. Rajesh Pandey who has been named in the FIR. This version finds support from the eye-witness Vaibhav Singh, Rakesh Singh etc. Injuries of Suresh have been explained by the witnesses in the statement under Section 161 Cr.P.C. Post-mortem report shows that firing was done from the close range as wad was found in the body and injury had blackening and tattooing. Right to private defence does not extend to firing from such a close range. Injuries caused to Suresh are simple in nature. Dr. Rajesh Pandey had criminal bent of mind. He had two cases pending against him. In one case, he threatened one journalist of newspaper who had published that Dr. Pandey had removed the kidney of one patient. Moreover, it is said by Dr. Pandey that Awdhesh Tiwary had filed an affidavit stating therein that he had fired upon Gaurav in self-defence. But on being asked specifically by this Court, affidavit has been filed by one of the pairokars of Awdhesh Tiwari that he had not fired. Thus, it is apparent that Dr. Pandey is trying to tamper the evidence. Charge has already been framed and 7th January, 2013 is fixed for prosecution evidence, as such, applicants are not entitled to be released on bail.
9)It is further submitted by Sri I.B. Singh that the bail of accused Suresh has been rejected by this Court. Sri Singh has also placed some decisions to buttress his submission that mere pendency of further investigation does not clothe accused with any right to bail.
10)Km. Nand Prabah Shukla, learned AGA has opposed the bail and said that it is a broad-day-light murder in which one person has been killed. There is an eye-witness account. So far as cross-version is concerned, further investigation is still in progress. She has placed the injury report of Suresh and report of Inspector which show that gun-shot injuries were found on left forehead and eye leading to loss of vision permanently.
11)From the material on record, it is apparent that place of occurrence is the chamber of Dr. Rajesh Pandey where deceased along with his associates had gone. He had some altercations with guards over the place of parking. Ultimately, both the parties gathered in the chamber of Dr. Pandey were two shots were fired. Glass and articles of the hospital were found broken. Gun was also found broken. Guard Suresh received gun-shot injuries on his forehead while Gaurav received injury on his chest. Gaurav lost his life while Suresh lost his vision of left eye. The cross-version that Vaibhav Singh had fired upon Suresh, is still being investigated. So far as criminal antecedents are concerned, it has been emphatically denied by Sri Jyotindra Mishra that two cases are pending. Only in one case, where journalist had come to the chamber of Rajesh Padney to blackmail him for publishing a false story of removing kidney from a patient which was found false in the Medical College, Lucknow because that patient had both kidneys, cross FIRs have been registered.
12)Awdhesh in his statement given before Investigating Officer admitted that he had fired upon Gaurav in self-defence as his colleague Suresh was injured by Vaibhav who had come with Sonu and other persons who were heavily armed. In the bail application, affidavit of pairokar has been filed disowning his version. In any case, this matter is being investigated by police in Case Crime No. 559A of 2012. In the FIR, there is no explanation of gun-shot injuries caused to Suresh. On the other hand, it is said that one shot was fired by Dr. Rajesh Pandey from the gun of Awdhesh and another shot was fired by another guard who was none else but Suresh. There is completely changed version in the statement recorded under Section 161 Cr.P.C., according to which second shot was fired by Awdhesh Tiwary from his gun, thus, ultimately, according to prosecution, one shot was fired by Rajesh Pandey causing injuries to Gaurav while Awdhesh had caused injury to his colleague Suresh.
13)Sri I.B. Singh has relied upon the case of Chhunnu alias Chhidda Vs. State of U.P. reported in 2011 (1) JIC 29 (All). In this case, bail was granted by the High court but Apex Court cancelled the bail. When fresh bail was moved before the High Court, this bail application was also rejected on the ground that on the same material Apex Court had rejected the bail and there is no fresh material, moreover, in cross-case, final report was submitted and accepted by the Magistrate.
14)Sri Singh has relied upon para 13 of Tauseef Ahmad alias Tauseem Vs. State of U.P. reported in 2006 (3) JIC (All) which says that "cardinal principles to be considered at the time of granting bail during the pendency of trial under Sections 437(1) and 439(1) Cr.P.C. is that the accused has not made any endeavour to tamper with the investigation at any point of time and that he will not do so with evidence and witnesses during the course of trial. Thus the conduct of the accused during the stage of investigation is one of the several relevant factors which has to be taken into consideration while exercising discretion in his favour to enlarge him on bail. The past conduct of the accused is also relevant fact for ensuring fair, unblemished and untainted trial. Any person accused of a non-bailable offence forfeits his right to be released on bail who by his conduct during the course of investigation had made efforts to tamper with the evidence and had tried to influence the investigation for the desired results in his favour. Further any accused who does not believe in the majesty of the Court and judicial process does not deserve for discretionary order to be exercised in his favour for grant of bail during the pendency of the trial. In the backdrop of such legal principles that the case of the present applicant is to be examined for grant of bail.
15)In the case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another reported in (2010) 14 Supreme Court Cases 496, reliance has been placed upon para 9 of the judgment, which is being reproduced below:-
"However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii)nature and gravity of the accusation;
(iii)severity of the punishment in the event of conviction;
(iv)danger of the accused absconding or fleeing, if released on bail;
(v)character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii)reasonable apprehension of the witnesses being influenced; and
(viii)danger, of course, of justice being thwarted by grant of bail. "
14)Sri Singh has also relied upon the case of Pratapbhai Hamirbhai Solanki Vs. State of Gujarat and Another reported in (2013) 1 Supreme Court Cases 613. This decision has been cited for submission that pendency of further investigation does not entitle the accused for bail. This decision is inapplicable in this case as further investigation is going on in the counter-case.
15)Sri Jyotindra Mishra has relied upon the decision of Supreme Court in the case of Darshan Singh Vs. State of Punjab and Another reported in (2010) 2 Supreme Court Cases 333. The Apex Court while considering the scope of private defence, laid down the following principles in para 58, which are being quoted below:
"The following principles emerge on scrutiny of the following judgments:
(i)Self-preservation is the basis human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.
(ii)The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii)A mere reasonable apprehension is enough to put the right of self-defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv)The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v)It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi)In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii)It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.
(viii)The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix)The Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.
(x)A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
16) Sri Mishra has also relied upon the case of Bashishth Singh and Another Vs. State of Bihar reported in (2002) 10 Supreme Court Cases 384. In this case, final report was filed yet Hon'beApex Court directed the accused to be released on bail. However, Court does not discuss any principle in this case. Relevant para- 2 of the judgment is being reproduced below:
"The appellants are involved in a case for which there is a cross-case (or counter-case as it can be called). The case against the appellants is based on the FIR lodged by the complainant Ram Narain Singh. The counter-case was built up on the strength of the FIR lodged by the 2nd appellant. Both the cases were investigated but only in one case final report has been laid. Whatever be the position, we feel that this is a case where the appellants can be let on bail during the trail period. We, therefore, order the appellants to be released on bail on each of them executing a bond in a sum of Rs. 25,000/- with solvent sureties to the satisfaction of the Sessions Judge, Kaimur."
17)Inspector, Kotwali Colonel Ganj, has in his report categorically stated that guard Suresh has lost vision of left eye permanently.
18)Admittedly, the place of occurrence is chamber of Dr. Rajesh Pandey. It cannot be denied that Suresh guard of Dr. Rajesh Pandey had received grievous gun-shot injuries losing his vision of left eye permanently. Only two shots were fired, one hit Gaurav (deceased), brother of informant while second shot hit guard of Dr. Rajesh Pandey. Except these two persons, no other person has received any injury. There is no explanation of injuries of Suresh in the FIR. Prosecution is at variance regarding author of second shot. There is no ante-mortem injury except the gun-shot on the body of the Gaurav, although all the accused persons are said to have beaten him and he was also beaten with butt of gun. There is no material to show as to why Gaurav had come to Pandey' nursing home. It is also admitted that initially altercation ensued between the guards and the deceased on the question of parking. Charge-sheet has already been filed, as such there is no chance of tampering with the evidence. While Suresh has been denied bail, other co-accused persons have been granted bail by this Court. Cross-version is still being investigated. Which party was aggressor and whether accused persons had right of private defence, are the questions to be determined at the time of trial. It has also come on record that chamber of Dr. Pandey was ransacked and broken glass and articles were collected by Investigating Officer. In the absence of ideal position of law and order, right to private defence assumes greater significance especially when someone is suddenly confronted with an impending danger that too in his place of abode. This Court is not supposed to make any comment upon merits as trial is going on.
19)Having considered the rival submissions, material collected by Investigating Officer and other attending circumstances, without expressing any opinion on the merits of the case, I find it to be a fit case for bail.
20)Let applicants Dr.Rajesh Pandey and Awadhesh Kumar Tewari, involved in aforesaid case crime number, be released on bail on their furnishing a personal bond and two heavy sureties each to the satisfaction of the court concerned subject to the following conditions:-
(i)That the applicants shall not tamper with prosecution evidence by intimidating or terrorising the witnesses;
(ii)That they shall not indulge in any criminal activities or commission of crime after being released on bail; and
(iii)They will not seek unnecessary adjournments so as to delay the trial.
Order Date :- 08.02.2013 rk/-