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2009 DIGILAW 2903 (ALL)

Manoj v. State Of U. P.

2009-08-20

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. "Whether on rejecting bail application of any accused by one Bench, another Bench is bound to reject the bail application of similarly placed co-accused on the principle of parity," is one of the main points, which falls for consideration in this bail application under Section 439 Cr.P.C., by means of which, prayer for bail has been made on behalf of the applicant Manoj son of Gajendra Singh, who is facing trial in S.T. No. 308 of 2006 (State Vs. Gajendra and others), arising out of Case Crime No. 654 of 2005 under Section 147, 148, 149, 302, 504, 506 I.P.C. P.S. Kotwali, Bulandshahr. 2. An FIR was lodged at P.S. Kotwali Nagar, Bulandshahr on 5.11.2005 by Smt. Manju Verma wife of Mukesh Verma. A case under Section 147, 148, 149, 307, 504, 506 I.P.C. was registered at Case Crime No. 654 of 2005 against Gajendra Singh, Ballu, Indrapal, Mahipal, Manoj (applicant herein), Chhattrapal and Sonu Verma @ Sonveer. The allegations made in the FIR, in brief, are that when on 5.11.2005 at about 2:30 p.m., Mukesh (hereinafter to be referred as deceased), husband of the complainant Smt. Manju Verma, was sitting on his shop, the accused Gajendra Singh and his sons Manoj and Chhattrapal having knives in their hands and Babloo, Indrapal, Mahipal and Sonu Verma @ Sonveer armed with country made pistols and revolver entered into the shop of complainant, situated in Mohalla Sunarowali Gali, Bulandshahr and with a view to cause the death of Mukesh, the accused Gajendra Singh gave knife blow in his chest and thereafter on the exhortation of accused Babloo, the accused persons having fire arms fired from their respective weapons, due to which the deceased Mukesh as well as one customer Mukesh son of Chandra Kishore, who had come to purchase the goods on the shop, sustained injuries. It is further alleged in the FIR that the accused Manoj and Chhattrapal also gave knife blows to the husband of the complainant. This incident is said to have been witnessed by the complainant Smt. Manju Verma and Farookh as well as by near by shop keepers. 3. After the incident both the injured were carried to District hospital Bulandshahr, from where they were carried to Ghaziabad and were admitted there in Yashoda Hospital. During treatment, the husband of the complainant succumbed the injuries. 4. 3. After the incident both the injured were carried to District hospital Bulandshahr, from where they were carried to Ghaziabad and were admitted there in Yashoda Hospital. During treatment, the husband of the complainant succumbed the injuries. 4. I have heard lengthy arguments of Sri Vijay Shankar Misra, Advocate appearing for the applicant, Sri Mukhtar Alam Advocate representing the complainant and AGA for the State. 5. At the outset, it was brought to my notice by the learned counsel for the complainant that bail of co-accused Gajendra Singh and Chhattrapal has been rejected by another Bench of this Court vide common order dated 1.2.2007 passed in Criminal Misc. Bail Application Nos. 10703 of 2006 and 15732 of 2006 and hence the bail application of the applicant also is liable to be rejected on the principle of parity. The contention of the learned counsel for the complainant was that co-accused Gajendra and Chhattrapal also were armed with knives like the applicant Manoj and since the role of these accused persons in committing the murder of deceased was identical, hence, the bail application of applicant also should be rejected on the principle of parity. On this point, it was contended by learned counsel for the applicant that parity cannot be the sole ground for granting or refusing bail and hence, the bail application of the applicant cannot be rejected merely because the bail applications of similarly placed co-accused Gajendra and Chhattrapal have been rejected by another Bench of this Court. 6. Having given my thoughtful consideration to the aforesaid submissions made by learned counsel for the parties, in my opinion, the bail application of the applicant cannot be rejected on the ground that similarly placed co-accused Gajendra and Chhattrapal have been declined bail by another Bench of this court vide common order dated 1.2.2007 passed in Bail Application Nos. 10703 of 2006 and 15732 of 2006. Reference in this regard may be made to Sobha Ram Vs. State of U.P. 1992 (29) ACC 59. Otherwise also, it is worthwhile to mention that after passing the order dated 1.2.2007 on the bail applications of co-accused Gajendra Singh and Chhatrapal by another Bench of this Court, two witnesses namely Dr. Ajay Panwar and Dr. Reference in this regard may be made to Sobha Ram Vs. State of U.P. 1992 (29) ACC 59. Otherwise also, it is worthwhile to mention that after passing the order dated 1.2.2007 on the bail applications of co-accused Gajendra Singh and Chhatrapal by another Bench of this Court, two witnesses namely Dr. Ajay Panwar and Dr. Sushil Photedar have been examined in Trial Court in S.T. No. 308 of 2006 and present bail application has been pressed mainly on the basis of the statements of these witnesses. 7. On merit it was submitted by learned for the applicant that as per FIR version and statements of the witnesses, the applicant Manoj is said to have given knife blow to the deceased, but no injury caused by knife was found at the time of medical examination of deceased Mukesh and hence, on this ground, the applicant should to be released on bail. For this submission attention of the Court was drawn towards the statements of Dr. Ajay Panwar and Dr. Sushil Photedar, copies whereof have been filed with Annexure-5 of the bail application. The contention of the learned counsel for the applicant was that in injured condition, the deceased was carried to Yashoda hospital Ghaziabad, where he was medically examined by Dr. Sushil Photedar on 5.11.2005, but no injury caused by knife was found on his person at the time of his medical examination and hence, on this ground alone, the applicant deserves to be released on bail. 8. The bail application was vehemently opposed by learned counsel for the complainant and AGA contending that the applicant also had actively participated in the incident of causing injuries to the deceased on the alleged date, time and place and hence, in this heinous crime, the applicant should not be granted bail. It was also submitted by learned counsel for the complainant that by granting bail by this court making any observation about the evidentiary value of the statements of Dr. Ajay Panwar and Dr. Sushil Photedar, serious prejudice may be caused to the prosecution and hence, the applicant should not be granted bail making any comment on the statements of both these witnesses. 9. It was also submitted by learned counsel for complainant that the applicant was a member of unlawful assembly and hence by virtue of Section 149 I.P.C., he is also liable for the murder of deceased. 10. 9. It was also submitted by learned counsel for complainant that the applicant was a member of unlawful assembly and hence by virtue of Section 149 I.P.C., he is also liable for the murder of deceased. 10. I have carefully gone through the entire material on record. After the incident, the husband of the deceased was carried to district hospital Bulanshahr, but he was not medically examined there. Both the injured were carried to Yashoda hospital, Ghaziabad. The deceased was medically examined in Yashoda hospital Ghaziabad on 5.11.2005 by Dr. Sushil Photedar, who has been examined in S.T. No. 308 of 2006 as P.W.2. Paper no. 36 is the copy of the statement of Dr. Sushil Photedar. Certified copy of his statement was also produced at the time of argument, which also has been taken on record. From the statement of Dr. Sushil Photedar, this fact is borne out that two fire arm wounds and three lacerated wounds were found on the person of deceased Mukesh at the time of his medical examination, when he was alive. Dr. Sushil Photedar has stated in his statement at page 2 (paper no. 37) that injury no. 1,2 and 3 were lacerated wounds, which are possible to be caused by some blunt object. Dr. Photedar has further stated that margins of injury no. 1,2 and 3 were not sharp cut, whereas margins of the injury caused by knife should be sharp cut. Dr. Ajay Panwar also had examined both the injured in the same hospital on 5.11.2005. Regarding the injuries of Mukesh son of Kishan Verma (deceased), Dr. Ajay Panwar has stated in his statement on page 2 (paper no. 33) that both the injuries of Mukesh Verma son of Kishan Verma were possible to be caused by fire arm. At page 4, Dr. Ajay Panwar has stated that rest injuries of Mukesh Verma son of Kishan Verma were lacerated wounds. Admittedly, no injury by knife was caused to the injured Mukesh son of Chandra Kishore. Therefore taking the aforesaid statements of Dr. Shushil Photedar and Dr. Ajay Panwar into consideration, but without expressing any final opinion about the evidentiary value of their statements, the applicant may be released on bail now. 11. Admittedly, no injury by knife was caused to the injured Mukesh son of Chandra Kishore. Therefore taking the aforesaid statements of Dr. Shushil Photedar and Dr. Ajay Panwar into consideration, but without expressing any final opinion about the evidentiary value of their statements, the applicant may be released on bail now. 11. Let the applicant Manoj s/o Gajendra Singh be released on bail in Case Crime No. 654 of 2005 under Sections 147, 148, 149, 302, 504 and 506 P.S. Kotwali Nagar, District Bulandshahr on his executing a personal bond for Rs. 50,000/- and furnishing two sureties each in the like amount to the satisfaction of the court concerned and executing an undertaking with following conditions. 1.The applicant shall not tamper with the prosecution evidence by intimidating the witnesses. 2.He shall co-operate with speedy trial. 3.He shall not indulge in any criminal activity or commission of any crime after being released on bail. On violation of any of aforesaid conditions, the prosecution would be at liberty to move application for cancellation of bail. 12. Before parting with this order, I would like to point out that whatever observations have been made about the statements of Dr. Ajay Panwar and Dr. Sushil Photedar are for the disposal of this application only. The Trial Court will independently take its own view regarding evidentiary value of the statements of Dr. Ajay Panwar and Dr. Sushil Photedar without being prejudiced by any observation made by me herein-above in this order. The matter of vicarious liability of the applicant under Section 149 I.P.C. also would be considered by the trial court without being prejudiced by any observation made in this order. 13. The Trial Court is directed to conclude the trial of applicant and other accused persons within a period of six months by making necessary efforts, avoiding unnecessary adjournments and applying the promises of Section 309 of the Code of Criminal Procedure.. 14. SSP Bulandshahr also is directed to depute special messenger to procure the attendance of rest witnesses after obtaining their summons from the court concerned and it must be ensured that all the rest witnesses are produced in S.T. No. 308 of 2006 without causing any delay. 15. Office is directed to send a copy to the Trial Court and S.S.P Bulandshahr.