Allahabad High Court
Praveen vs State Of U.P. on 15 March, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 82 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4209 of 2021 Applicant :- Praveen Opposite Party :- State of U.P. Counsel for Applicant :- S.P.S. Chauhan Counsel for Opposite Party :- G.A.,Mayank Singh Hon'ble Rahul Chaturvedi,J.
Heard Sri S.P.S. Chauhan, learned counsel for the applicant, Sri Mayank Singh, learned counsel for the informant as well as learned AGA for the State and perused the averments / supporting annexures in the instant bail application.
Applicant- Praveen is facing incarceration since 13.01.2020 in connection with Case Crime No. 09 of 2020, under Sections 302, 34 IPC, Police Station- Khandauli, District- Agra, who is seeking enlargement on bail during trial.
Counter affidavit by learned AGA is taken on record. Learned counsel for the applicant do not propose to file any rebuttal by means of rejoinder affidavit, to the said counter affidavit by the State and insists to decide the bail application on merits. Accordingly the bail application is hereby decided on merits.
Sri S.P.S. Chauhan, learned counsel for the applicant opens his submissions by drawing attention of the Court to the FIR dated 12.01.2020 at 14.05 hours, for the incident said to have taken place at 10.30 am. on the same day, by one Deokinandan, the informant, against three named accused persons, (a) Rakesh, (b) Lavkush and (c) Praveen (the applicant) for the alleged incident of firing upon one Amit, who sustained gun shot injury over his chest and consequently died on the spot. As per the text of FIR on the fateful day and time, informant with his cousin Amit (hence deceased), Ajay were going to Sadabad, while crossing Garhi Maharaj, they have crossed pipe used for irrigation purpose (lesan). The accused persons started hurling filthy abuses and when objected, then Rakesh & Lavkush caught hold Amit, and thereafter exhorted Praveen (the applicant) to give fire, consequently, Praveen has given fatal fire over the chest of Amit and thereafter fled away from the place of occurrence. Informant who is an eye witness to the incident has taken Amit to the hospital, where he was formally declared dead by the doctors.
On this prosecution version, learned counsel for the applicant has hammered his submissions at length. For the sake of brevity, the arguments advanced by the learned counsel are formulated hereinbelow:-
(i) The applicant is falsely implicated in the present murder case by the informant as there is no motive or intention of the applicant to commit the crime.
(ii) After lodging of the FIR, the I.O of the case has prepared the inquest report of the deceased at the mortuary of the Medical College, Agra in which no time of starting of alleged inquest report has been mentioned, which sufficiently indicates that no such incident ever took place as canvassed by the prosecution.
(iii) The postmortem report of the deceased too contains number of loopholes viz: Doctor has not mentioned the time of death of deceased, the postmortem report refers to only one fire arm wound of entry but no exit wound, there is no mention as to whether any blackening or tattooing present around the alleged fire arm injury or not and lastly, he has received an unsealed body of the deceased, casting grave doubts over prosecution case.
(iv) During investigation in the statement under Section 161 Cr.P.C. of the informant, he discloses that on the date of incident he along with others were going by Bolero Car to Sadabad, but the I.O. of the case who prepared the site plan, has not shown any Bolero Car allegedly used by the informant, nor any recovery of empty cartridges is shown from the spot, putting grave question mark to the entire prosecution case.
(v) Per prosecution story, prior to the incident, there were heated conversations between them and thereafter alleged unfortunate incident took place, but, neither the informant nor any other person sustained any injury putting the prosecution under cloud of doubts.
(vi) No sane person would carry any Tamancha during broad day light as canvassed in the FIR, this is an absurd theory floated by the prosecution.
(vii) Lastly, this is the cross case where both the sides have sustained injuries. The mother of the applicant, namely Smt. Manju has submitted Tahrir, but her FIR could not be registered under the pressure of the informant. Through 156 (3) application, her FIR was got registered as Case Crime No. 0038 of 2020, under Sections 147, 148, 149, 323, 307, 308, 504, 506 and 427 IPC Police Station- Khandauli, District- Agra on 20.02.2020. The police after the investigation has submitted charge-sheet no. 186/2020 and the Magistrate has taken cognizance of the offences. As per her theory, deceased and his family members were aggressor, Munna Lal wanted to give fire shot upon the applicant but on account of mistake, the fire of Munna Lal hit the deceased Amit.
Per contra, learned AGA vehemently opposed the bail application of the applicant. It was contended that prompt FIR was got registered by the eyewitness of incident, Deokinandan with specifying role to the applicant, that he is the main assailant who has given lethal fire arm injury over the chest of the deceased. The postmortem report shows that a fire arm wound of entry 2x1 cm. over the left side of chest, 4 cm. above left nipple. A foreign body was recovered admeasuring 3x5 cm. from the chest cavity. Cause of death is shock and haemorrhage on account of anti-mortem injury. The statements recorded under Section 161 of the eye-witnesses, Deokinandan and Ajay fully corroborate the prosecution story. Thus adding the dotes it clearly and unmistakenly indicates the active involvement of the applicant in commission of the present offence. It was also urged by the learned AGA that this unfortunate incident took place in broad day light at 10.30 a.m. and the informant was present over the place of occurrence. Right in front of his eyes this firing incident took place, ruling out any possibility of mistaken identity of the main shooter. Not only this, prompt FIR came into existence by the informant eye-witness, who has witnessed the entire incident and has recorded first hand information by the police discarding any possibility of any tutoring while lodging of the FIR.
After giving careful hearing to the rival parties, it is written on the wall that the applicant is the main author of this murder case. Prompt FIR was lodged by the informant, coupled with the fact, that postmortem report fully supports the prosecution story. So far as submissions advanced by the defence, indicating certain fallacies in the prosecution story. It is well established tenets of the law, where their is direct ocular testimony by the informant against the applicant, then the "mens rea", motive, intention would occupy the back seat. This aspect of the issue looses its significance.
Besides this, alleged loopholes on the part of I.O. in preparing the inquest report or postmortem report, would not going to given any benefit to the applicant or put question mark on the authenticity of the prosecution case, as argued by learned counsel. After hearing these submissions, I am not all impressed by these submissions advance by counsel for the applicant. The Court can not shut its eyes to story of prosecution, promptly registered while giving vivid details of the incident. These technical slangs would not going to dilute or create any iota of doubt. So far as the alleged creation of cross case is concerned, it was through 156(3) Cr.P.C. application, establishes the presence of the applicant over the place of occurrence. This fact occupies significance when it was strenuously submitted by the learned counsel for the applicant that both the parties resides at different villages, then how and under what circumstances both the parties were present at one place of incident. This by itself is self contradictory. This Court does not want to elaborately discuss and decide each and every issues argued by learned counsel for the applicant, else, it would bound to adversely jeopardize the future prospects of the 'Defence' during the trial.
Hon'ble the Apex Court in the judgment of Prashan Kumar Sarkar vs Ashis Chatterjee (2010) 14 SCC 496, has provided the guidelines for the disposal of any bail application viz:-
(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."
Thus taking into account, the guidance of these guidelines formulated by Hon'ble Apex Court, the applicant who is the main assailant, in commission of the crime, does not deserve any laxity from this Court. Hence the bail application of the applicant named above stands REJECTED.
Learned Trial Court is directed to gear up the trial and would make all necessary endeavour to conclude the same as early as possible without granting unnecessary and unwarranted adjournments to either of the parties.
Order Date :- 15.3.2021 SK Srivastava