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2003 DIGILAW 224 (UTT)

Beeran Lal v. State of Uttaranchal

2003-10-20

IRSHAD HUSSAIN, S.H.KAPADIA

body2003
JUDGEMENT S.H. Kapadia, J. 1. This is the motion to enlarge the appellant on bail pending disposal of the Appeal before this Court. Appellant, Beeran Lal, has been convicted by the Session's Judge, Udham Singh Nagar in Session's Trial No. 443 of 2000. He has been sentenced, along with Rajan Lal and Prabhu Charan to undergo life imprisonment for an offence punishable under section 302 read with section 34 I.P.C. The two others are on bail. The motion has been argued at length. In order to deal with the arguments advanced on behalf of the appellant, we are required to mention a few facts. 2. FACTS: There was an arrangement between Chote Lal, father of the deceased and the said Beeran Lal to sell mutton from their respective shops for 17 days and 9 days in a month respectively. This arrangement was not adhered to. This led to disputes. Babu Ram was the son of Chote Lal (PW1). Apart from the shop at Pada Gaon, Chote Lal had one more shop at Sitargang, which was located opposite the shop of Beeran Lal. On 17th July 2000, when Babu Ram was going to his shop at Pada Gaon via their shop at Sitargang, he was attacked by Beeran Lal, Rajan Lal and Prabhu Charan. The deceased, Babu Ram was told not to go to his shop at Pada Gaon, to which he objected. At that stage, he was attacked with knives. The injured Babu Ram ran into his shop of Sitargang. The three accused followed Babu Ram into his shop. In the shop, an employee by the name Rahul was there. Babu Ram was murdered inside his shop. The incident took place on 17th July 2000 at 3:30 p.m. This is the basic case of the prosecution. Chote Lal (PW1) was the informant. Rahul (PW2) was the eye-witness. On the basis of the evidence on record, all the three accused were convicted under section 302/34 I.P.C. and sentenced to life imprisonment as stated above. 3. ARGUMENTS: Mr. P.M.N. Singh, learned Counsel for the appellant at the outset pointed out that the appellant is in custody from 8th September 2000. That the co-accused - Rajan Lal & Prabhu Charan are on bail. That the prosecution has assigned the same role to all the three alleged offenders. 3. ARGUMENTS: Mr. P.M.N. Singh, learned Counsel for the appellant at the outset pointed out that the appellant is in custody from 8th September 2000. That the co-accused - Rajan Lal & Prabhu Charan are on bail. That the prosecution has assigned the same role to all the three alleged offenders. That since Rajan Lal and Prabhu Charan were on bail, the appellant Beeran Lal was also entitled to bail on the principle of Parity. Mr. P.M.N. Singh, learned Counsel for the appellant contended that the F.I.R. (Ex.Ka. 5) was dated 17th July 2000, but it reached the Jurisdictional Magistrate on 25th July 2000, and therefore, there was a breach of section 157 CrPC. It was next contended that F.I.R. (Ex. Ka. 5) was ante-timed. In this connection, he added that the Inquest Report (Ex. Ka. 9) does not give the names of all the three alleged offenders, which is one of the circumstances to show that the F.I.R. (Ex. Ka. 5) was not genuine. That even section 34 IPC was not quoted in the Inquest Report (Ex. Ka. 9). That there were number of blank sheets in the Inquest Report (Ex. Ka. 9). He, therefore, contended that the F.I.R. (Ex. Ka. 5) was not genuine. The learned Counsel for the appellant submitted that, ordinarily, conviction would lie in cases where the prosecution witnesses are reliable. He, however, contended that in this case the statement of Chote Lal (PW1) is contrary to Ex. Ka. 6 which is one of the two G.D. Entries. It further pointed out that in this case Beeran Lal (appellant) was also charged for offence under section 25 of the Arms Act besides section 302 I.P.C. That the Lower Court has disbelieved Rahul (PW2) as the witness of recovery. That recovery has been disbelieved by the Lower Court. That under the circumstances, both PW1 and PW2 were not wholly reliable and their evidence required corroboration. That since the F.I.R. (Ex. Ka. 5) was not sent to the Magistrate in time and since the I.O. (PW8) has not been able to explain the delay in sending the F.I.R. (Ex. Ka. 5), the said F.I.R. was not genuine and cannot corroborate evidence of PW1 and PW2. Moreover, the Inquest Report (Ex. Ka. 9) does not mention the names of the three accused and nor does it quote section 34, which indicates that the F.I.R. is ante-timed. Mr. Ka. 5), the said F.I.R. was not genuine and cannot corroborate evidence of PW1 and PW2. Moreover, the Inquest Report (Ex. Ka. 9) does not mention the names of the three accused and nor does it quote section 34, which indicates that the F.I.R. is ante-timed. Mr. P.M.N. Singh, learned Counsel for the appellant, next contended that there were several inconsistencies in the statement of Chote Lal (PW1). That in his statement, Chote Lal (PW1) has stated that he had gone to the Police Station to lodge the complaint all alone. However, in the G.D. entry (Ex. Ka. 8), it is stated that the informant was accompanied by two other persons. It was, therefore, argued that the statement of Chote Lal (PW1) has not been corroborated by the F.I.R. (Ex. Ka. 5). That in view of such inconsistencies, the appellant was entitled to bail. That the appellant has been in custody from 8th September 2000. That he has never violated conditions of interim bail. In the circumstances, he was entitled to bail. Learned Counsel for the appellant cited numerous judgments of the Supreme Court in support of his case. 4. ISSUE: The single question which we have to decide in this case is whether the appellant is entitled to bail? 5. ANSWER: For the reasons given hereinafter, we hold that the appellant is not entitled to bail. 6. REASONS: Before giving reasons, we wish to clarify that our observations are tentative. They should not be treated as conclusive. The should not be treated as conclusive. The observations in this Order are made only in order to deal with the arguments raised on behalf of the appellant. Firstly, we find that the F.I.R. (Ex. Ka. 5) was genuine. In this case, the incident took place on 17th July 2000 at 3:30 p.m. The F.I.R. (Ex. Ka. 5) was lodged at the Police Station at 4:15 p.m. under Crime No. 337/2000. On the very first page of the Inquest Report (Ex. Ka. 9), the name of the appellant is mentioned. The appellant was arrested on the same day. On the same day, at 5:25 p.m., the work of preparation of the Inquest Report (Ex. Ka. 9) started and the Inquest Report was ready by 6:00 p.m. It was prepared on the spot by the I.O. (PW8). The evidence of the I.O. (PW8) shows that he had dispatched the F.I.R. (Ex. Ka. On the same day, at 5:25 p.m., the work of preparation of the Inquest Report (Ex. Ka. 9) started and the Inquest Report was ready by 6:00 p.m. It was prepared on the spot by the I.O. (PW8). The evidence of the I.O. (PW8) shows that he had dispatched the F.I.R. (Ex. Ka. 5) on the same day. On 18th July 2000, the appellant was produced with the F.I.R. (Ex. Ka. 5) before the Jurisdictional Magistrate. In the Inquest Report (Ex. Ka. 9), there is a reference to Crime No. 337/2000. In the documents annexed to the Inquest Report (Ex. Ka. 9), there is a Chalan Naash, which is in a proforma. That proforma has been filled in. That Chalan Naash shows Crime No. 337/2000. It also quotes section 34/302. It also gives the date and time of the incident. The Inquest Report (Ex. Ka. 9) has several pages, in which section 34/302 is quoted. Even the G.D. Entry (Ex. Ka. 8) gives Crime No. and section. All these circumstances show that the F.I.R. (Ex. Ka. 5) was genuine and was not ante-timed as alleged. Further the Inquest Report (Ex. Ka. 9) shows that 7 items were forwarded to the doctor, who carried out the post-mortem and the post-mortem report (Ex. Ka. 2) shows that after the post-mortem, all the 7 items have been returned by the doctor. In other words, the F.I.R. (Ex. Ka. 5) is genuine and was not ante-timed and it was very much in existence when the Inquest Report (Ex. Ka. 9) was prepared. Therefore, there is no reason to doubt the genuineness of the F.I.R. (Ex. Ka. 5). One more aspect may be mentioned. According to the evidence of the I.O. (PW8), the F.I.R. (Ex. Ka. 5) was dispatched to various higher authorities on 17th July 2000 and under the circumstances, above mentioned, there is no reason to doubt the genuineness of the F.I.R. (Ex. Ka. 5). The so called contradiction in the statement of Chote Lal (PW1) is a minor contradiction. Whether Chote Lal (PW1) went to the Police Station all alone to lodge the complaint or with Ram Chandra and Sumer, does not defeat the testimony of Chote Lai (PW1). Rahul (PW2) is a witness of fact. He was in the shop when the incident took place. The body of Babu Ram (since deceased) was found in that very shop. Whether Chote Lal (PW1) went to the Police Station all alone to lodge the complaint or with Ram Chandra and Sumer, does not defeat the testimony of Chote Lai (PW1). Rahul (PW2) is a witness of fact. He was in the shop when the incident took place. The body of Babu Ram (since deceased) was found in that very shop. Merely because Rahul (PW2) has been disbelieved as a witness of recovery, cannot make PW2 a totally wholly unreliable witness. In this case, the F.I.R. (Ex. Ka. 5) is lodged in time. In this case, the investigations commenced immediately. In this case, there are no circumstances brought on record to show that the investigation was tainted. Therefore, merely because the Jurisdictional Magistrate received the report after 8 days would not make the entire investigation tainted. Lastly, in view of the above facts, the principle of Parity will not apply. The two other accused namely Rajan Lal and Prabhu Charan were on bail during the pendency of the trial. Further, in this case, we are at the stage, where the appellant is found guilty by the Lower Court after the trial. Lastly, in view of the facts and circumstances of this case as discussed above, we cannot grant bail to the appellant only on the basis of the principle of Parity: In the case of Dinesh Kumar Vasudev Nayak V/s State of Gujarat reported in 2003 (3) Crimes 497, it has been held by the Gujarat High Court that the principles governing grant of bail on parity cannot be allowed to be carried to an absurd conclusion so as to put a judge in a straight jacket, so as to grant bail automatically. That in the past, bail orders did not record reasons and therefore, it was difficult to verify whether the appellant's case stood on the same footing. In the present case, it is not in dispute that during the pendency of the trial, the other two accused namely Rajan Lai and Prabhu Charan were on bail. That during the trial, the appellant was not on bail. That in any event, under the above set of circumstances, we do not see any reason to grant bail to the appellant. 7. Before concluding, we once again clarify that our above reasons will not prevent the appellant from making various submissions in support of his case in the appeal. That during the trial, the appellant was not on bail. That in any event, under the above set of circumstances, we do not see any reason to grant bail to the appellant. 7. Before concluding, we once again clarify that our above reasons will not prevent the appellant from making various submissions in support of his case in the appeal. That our reasons are tentative and they will not preclude the appellant from arguing the case on merits in any manner. 8. Subject to above, the application for bail is rejected.