Allahabad High Court
Sunil Kumar Mishra vs State Of U.P. Thru. Its Addl. Chief Secy. ... on 7 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 12 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2821 of 2023 Applicant :- Sunil Kumar Mishra Opposite Party :- State Of U.P. Thru. Its Addl. Chief Secy. Home Lucknow Counsel for Applicant :- Ravi Singh Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Ravi Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This second bail application has been moved by the accused/applicant- Sunil Kumar Mishra for grant of bail, in Case Crime No. 0227 of 2020, under Sections 147, 148, 149, 307, 302/34 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Jagdispur, District Amethi, during trial, as his first bail application has been rejected by this Court, vide order dated 09.11.2021 passed in Criminal Misc. Bail Application No. 2561 of 2021.
Learned counsel for the accused-applicant while pressing the bail application submits that the first bail application of the applicant was rejected on 09.11.2021. However, while rejecting the prayer of bail of the applicant, simultaneously a direction was given to the trial Court to make all out efforts to conclude the trial within one year from the date of order i.e. 09.11.2021 and the office was also directed to send a copy of the instant order to the trial Court concerned for compliance.
It is informed by learned counsel for the applicant that till now only three prosecution witnesses have been testified before the trial Court and also that the pace with which the trial is going on before the trial Court, is not expected to conclude in near future.
It is also submitted that the injuries which have been sustained by the deceased Umesh Mishra, by any stretch of imagination could not be sustained in the manner claimed by the prosecution, as the story of the prosecution is to the tune that firing was made from the roof of a house while the injuries recorded in the postmortem report of the deceased Umesh Mishra would reveal that the same have been inflicted by firing gun shot from even surface. Much emphasis has been laid by learned counsel for the applicant on the discharge summary of K.G.M.U., Lucknow, pertaining to the injured Kamlesh Kumar Mishra, wherein it is stated that he has sustained penetrating injury on back (multiple pellets) due to alleged history of firearm injury and it is submitted that the K.G.M.U., where the injured Kamlesh Kumar Mishra was treated have not found the injuries as caused by the firearm.
Similarly, with regard to the another injured Rajendra Mishra, it is submitted that he has stated in his statement recorded before the trial Court that he had sustained injury on his neck while in the injury report of injured Rajendra Mishra placed at Page No. 73 of the Paper book, an entry wound of the size of 0.5 x 0.5 cm. has been shown on his face, therefore, it appears that no incident, as claimed by the prosecution had occurred and due to the previous enmity the applicant and other co-accused persons have been falsely implicated.
It is also emphasized that the deceased as well as the other two injured persons have been admitted in the hospital at different timings and no explanation of the same has been given. The applicant is in jail in this case since 02.07.2020 and despite order of this Court, the trial has not concluded and the applicant is not having any criminal history. Thus, he be granted facility of bail.
Learned A.G.A. on the other hand submits that it is a case where one person has lost his life and other two have sustained injuries and all three (deceased and two injured persons) have sustained firearm injuries and, therefore, having regard to the statements of the two injured persons recorded before the trial court, the applicant is not entitled for any discretion.
Having heard learned counsel for the parties and having perused the record, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 09.11.2021 passed in Bail No. 2561 of 2021. While rejecting the prayer of bail of the applicant a direction was also given to the trial Court to conclude the trial within one year from the date of order. A copy of that order was also directed to be transmitted to the trial Court for compliance. However, it is informed that only three prosecution witnesses have been testified so far before the trial Court.
Perusal of the record would reveal that role of firing with gun of .12 bore has been assigned to co-accused Parashuram and by country made pistols to other co-accused persons including the instant applicant. However, it has not been described as to from country made pistol of which bore the gunshots have been fired by the accused persons excluding the Parashuram to whom the role of carrying and firing with 0.12 bore gun has been assigned. The deceased Umesh Mishra, as per the postmortem report, is shown to have sustained 06 injuries. The doctor in the postmortem report has stated that the death of the deceased has been caused due to 'hemorrhagic shock' as a result of 'antemortem firearm injuries'. The postmortem report would further reveal that the pellets have also been recovered from the body of the deceased. So far as the injuries sustained by the injured Kamlesh Mishra, which has been doubted by learned counsel for the applicant, to have been caused by firearm. At the first instance the injured Kamlesh Mishra was medically examined at C.H.C., Jagdishpur, wherein the injuries sustained by him are stated to have been caused by gun shot. However, in the discharge summary of the K.G.M.U., following observations has been written:-
"Admitting Diagnosis: Penetrating injury on back (multiple pellets) with laceration over right mid axillary region due to alleged history of fire arm injury."
Learned counsel for the applicant has interpreted the above observation of the K.G.M.U., Lucknow as that the injury to the injured Kamlesh Kumar Mishra has not been caused by firearm. I am not in agreement with the view adopted by learned counsel for the applicant.
The observation or the diagnosis part of the supplementary report of K.G.M.U., Lucknow, with regard to the injured Kamlesh Kumar Mishra prepared while discharging him, is to the tune that the penetrating injury sustained by this injured on his back is containing multiple pellets with laceration and has been caused due to alleged history of firearm injury and by any stretch of imagination it could not be construed to mean that no firearm injury was evident at the time of the admission or discharge of the injured Kamlesh Kumar Mishra, as on two occasions in this supplementary report, which has been doubted by learned counsel for the applicant, it is shown that the multiple pellets with laceration have been found on the back of the injured.
The other injured Rajendra Mishra, as per his medical examination report, prepared at C.H.C., Jagdishpur, is shown to have sustained injury on left side of his face i.e. 5 cm. away from left angle of his mouth. Distance of 5 cm. away from left angle of mouth in normal construction would mean that the angle which is going away from the left side of the mouth towards the neck or away from the mouth.
Thus, without entering into further discussion, with regard to the submissions made by learned counsel for the applicant, as the same may affect the discretion of the trial Court at the time of appreciating the evidence. Suffice is to say that in broad spectrum the theory of the prosecution was to the tune that the applicant and other co-accused persons had fired on the deceased and two injured persons. Co-accused Parashuram has been assigned the role of firing with 0.12 bore gun. The other co-accused persons have been assigned the role of firing with country made pistols. However, the country made pistols have not been recovered from any of the applicants, but the injuries which have been sustained by the injured persons as well as by the deceased may certainly be caused by the firearms.
Thus, keeping in view all the facts and circumstances of the case, I am not inclined to accept the prayer of bail of the applicant. Thus, the second bail application of the applicant is also rejected.
However, as stated earlier, it is noticed that while rejecting the first bail of the applicant on 09.11.2021, this Court had directed the trial Court to conclude the trial within one year from the date of order i.e. 19.11.2021. It is informed that only three prosecution witnesses have been testified so far. The applicant is stated to be in jail in this case since 02.07.2020. It is also informed that other co-accused persons are also detained in prison in this case.
Having regard to the fact that all the accused persons of this case have been detained in prison and till now only three prosecution witnesses have been testified, the trial Court is directed now to list the case pending before it, at least once in a week and to explore all avenues to record the evidence of the remaining prosecution witnesses, at the earliest.
The responsibility of producing the prosecution witnesses on each date of listing, before the trial Court would be of S.P./S.S.P., Amethi, who shall produce the prosecution witnesses on each and every date on which this case shall be listed before the trial Court.
The trial Court is also directed not to grant adjournment to either party unless satisfied that the ground on which the adjournment is being sought is beyond the control of the parties.
The trial Court shall conclude the trial within eight months from today and if the trial is not concluded within such period, the accused persons may approach this Court directly for renewing their prayer of bail.
A copy of this order be immediately transmitted to the trial Court by the office through the Sessions Judge concerned as well as to the Superintendent of Police/Senior Superintendent of Police, Amethi by fastest mode of communication i.e. Fax, E-mail, etc. The Sessions Judge, Sultanpur is further directed to monitor the progress of this case in the monthly meeting of the judicial officers, so that there should not be any lapse in compliance of the order of this Court.
Order Date :- 7.4.2023 Praveen