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2009 DIGILAW 2504 (ALL)

Tarun Harish Sharma v. State of U. P.

2009-07-08

SHRI KANT TRIPATHI

body2009
JUDGMENT: Shri Kant Tripathi, J. The applicant Tarun Harish Sharma has moved this application for bail in the case crime no. 634 of 2008 under sections 302, 307, 120 B I.P.C., section 7 of Criminal Law Amendment Act, section 27 of the Arms Act and section 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act 1986, P.S. Hathras Gate, District Hathras. Heard Sri Satish Trivedi the learned senior counsel assisted by Sri Anup Trivedi the learned counsel for the applicant and the learned AGA for the State and perused the record. 2. It is alleged that on 29.11.2009 the marriage of the complainant's son was being solemnized in Navgrah Temple, Hathras. His nephews Swetambar and Pitambar and other relatives had come to attend the marriage. At about 10.45 P.M. the complainant on hearing a noise of firing came to the main gate of the temple and found that five persons namely Rakesh Kumar, Mangi, Amit Kumar, Swetambar and Pitambar had sustained fire arm injuries. The injured Anil Kumar, Rakesh Kumar and Mangi died due to fire arm injuries, and other two injured, namely, Swetambar and Pitambar, anyhow, survived. It is also alleged that the applicant Tarun Harish Sharma, who is a practising advocate in Hathras, made the fire on all the deceased and injured with his rifle and fled away in his car. Both the injured witnesses Swetambar and Pitambar have stated during the investigation that the applicant himself disclosed his name and other identity at the time of the altercation which took place before the incident. The applicant's relative Mahesh Chandra and Pappu @ Parshottam, who had come, respectively, from the district Etah and Bharatpur also supported the incident under section 161 Cr.P.C.. The local witnesses Vimal Kumar Sharma, Bhagwati Prasad Sharma and Ravendra Kumar Upadhayay have also given eye witness account of the occurrence under section 161 Cr.P.C. and have supported the story of the main complicity of the applicant. The applicant's driver Mukesh @ Neta was also involved in giving assistance to the applicant who has made his confessional statement before the Additional Chief Judicial Magistrate, Hathras on 10.12.2008 and has stated that it was the applicant who killed all the three deceased and caused injuries to injured Swetambar and Pitambar with a fire arm. The police has filed charge-sheet against the applicant after completion of the investigation. 3. Mr. The police has filed charge-sheet against the applicant after completion of the investigation. 3. Mr. Satish Trivedi the learned senior counsel submitted that the confessional statement of the co-accused Mukesh @ Neta has not been recorded by the concerned Magistrate in due compliance of section 164 Cr.P.C. The Magistrate has not ascertained as to whether the co-accused made the confessional statement violanterily and did not put any question to the co-accused in this regard. The learned senior counsel further submitted that the confessional statement of co-accused is of no value in view of the law laid down in the case of Preetam Vs. State of M.P. (1996) SCC (Criminal) 1343. The confessional statement of co-accused has no value against the applicant in view of the fact that the co-accused has not given any statement against himself but has made incriminating statement against the applicant only. Such type of confessional statement being beyond the scope of section 30 of the Indian Evidence Act, 1872 is not relevant against the co-accused. 4. It was further submitted on behalf of the appellant that the appellant is not named in the FIR. If the injured witnesses Swetambar and Pitambar had come to know about the name and identity of the applicant, there was no reason for them to conceal this fact and not to disclose the same to the complainant before lodging of the FIR. The other two witnesses namely Mahesh Chandra and Pappu @ Parshottam Das are respectively residents of the district Etah and Bharatpur and as such they were not in a position to disclose the name and other identity of the appellant. The police has not held any test identification parade for identification of the appellant by these two witnesses. It was further submitted that in the FIR it has been alleged that the assailants fled away in an Indica Car. Now the story that has been set up is that the assailant fled away in the Santro Car U.P. 91 H 8634 belonging to the applicant's father. It was also submitted that the applicant being an advocate, was appearing in several cases against the police and has himself filed a criminal complaint against Ashtosh Tripathi, S.O. Mursan, Rakesh Sharma, Inspector, P.S. Kotwali, Hathras and 60-70 police personnel including Rameshwar Upadhyaya, block Pramukh, who happens to be the brother of Sri Ram Veer Upadhyaya a minister in the U.P. Cabinet. These three persons, in connivance with the complainant and his witnesses, got concocted the instant case against the applicant. 5. The learned AGA, on the other hand, submitted that the applicant has a criminal history. The involvement of the applicant as the main assailant in committing the murder of all the three deceased and also in causing injuries to the injured Swetambar and Pitambar is not only supported by the injured witnesses Swetambar and Pitambar and complainant's relatives Mahesh Chandra and Pappu @ Parshottam Das but also by the local witnesses, Vimal Kumar Sharma, Bhagwati Prasad Sharma and Ravendra Kumar Upadhyaya. All of them have given not only eye witness account of the occurrence but have also stated that it was the applicant who committed the murder of all the three deceased and caused injury to both the injured with fire arm. Adequate evidence has been collected during the investigation. It was further submitted that the relevancy of the confessional statement made by the co-accused cannot be examined at the stage of bail. No doubt the applicant happens to be a practising advocate but it is no ground to enlarge him on bail. In the case of Anil Kumar Tulsiyani Vs. State of U.P. and another 2006 (55) ACC 1014 the Supreme Court declined to grant bail to the accused on the ground of his being an advocate and observed in para 12: "In the present case, admittedly, the respondent is an advocate. Being an advocate he is in a commanding position and standing in the society. Keeping in view his position in the background, a reasonable apprehension of the witnesses being tampered with or won over, coerced, threatened or intimidated by using his influence and position cannot be ruled out." The aforesaid principles are also fully applicable in regard to the bail plea of the applicant. 6. The learned AGA relied on the cases of State of U.P. vs. Amar Mani Tripathi 2005 SCC (Cri)1960(2) and submitted that keeping in view the nature of accusation and other circumstances of the case, the applicant is not entitled to bail. The Apex Court, in Amar Mani Tripathi's case (supra) elaborated the matters to be considered in an application for bail in paragraph 18 of the judgment, which was reiterated in the case of Anil Kumar Tulsiyani's case (supra) in paragraph 11 of the judgment. The Apex Court, in Amar Mani Tripathi's case (supra) elaborated the matters to be considered in an application for bail in paragraph 18 of the judgment, which was reiterated in the case of Anil Kumar Tulsiyani's case (supra) in paragraph 11 of the judgment. In the said two cases, the Supreme Court held that the following circumstances are to be considered in an application for bail: (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 charge; (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 tampered with; and, (viii) danger, of course, of justice being thwarted by grant of bail." 7. In the case of Chaman Lal Vs. State of U.P. And another (2004) 7 SCC 525 the Supreme Court cancelled the bail of the accused which was granted on the ground that he was not named in the FIR and his name had come in light during the investigation. 8. The law in regard to bail is well settled. The Court has discretion to grant bail in appropriate cases and the discretion has to be exercised in judicious manner. At the stage of bail, detailed examination of the evidence and elaborate documentation of the merit of the case is not necessary. It is however, necessary to indicate reasons for prima facie concluding why bail is being granted. The Court is, however, required to consider the materials supporting the charge and to record its prima facie satisfaction in respect thereof. 9. At the stage of bail it is not proper to express any opinion regarding credibility of the statements of the witnesses Swetambar, Pitambar, Mahesh Chandra and Pappu @ Parshottam Das on the ground that no test identification parade was held for the identification of the applicant especially when local eye witnesses, namely, Vimal Kumar Sharma, Bhagwati Prasad Sharma and Ravendra Kumar Upadhyaya have supported the prosecution story and the involvement of the applicant in committing the murder of all the three deceased and in causing injuries to both the injured with a fire arm. It is also not proper to express any opinion regarding the relevancy of the confessional statement of the co-accused. For argument sake, if the confessional statement of the co-accused is excluded, even then, the statements of eye witnesses recorded under section 161, prima facie, make out a case against the applicant under sections 302, 307, 120 B I.P.C., section 7 of Criminal Law Amendment Act, section 27 of the Arms Act and section 2/3 of U.P. Gangster and Anti Social Activities (Prevention) Act, 1986 10. Keeping in view the facts and circumstances of the case, seriousness of the crime, complicity of the applicant and availability of adequate evidence against him, I do not consider it proper to enlarge the applicant on bail. The bail application is, therefore, rejected. The learned Trial Court is, however, directed to expedite the trial and, if possible, decide the same within six months from the date of receipt of a copy of this order.