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2009 DIGILAW 2921 (ALL)

OM PRAKASH v. STATE OF U. P.

2009-08-21

VIJAY KUMAR VERMA

body2009
JUDGMENT VIJAY KUMAR VERMA, J. 1. Prayer for bail in this bail application under section 439 of the Code of Criminal Procedure (in short the Cr.P.C.), has been made on behalf of applicant Om Prakash s/o Ram Chandra, who is facing trial in S.T. No. 41 of 2008 arising out of case crime No. 662 of 2007 under sections 147; 148, 149, 302 IPC and section 3 (2) (v) SC/ST Act, P.s. Thana Bhawan, District Muzaffarnagar. The said Session Trial is pending in the Court of Additional Sessions Court No.2, Muzaffarnagar. 2. An FIR was lodged on 9.9.2007 at 9.15 p.m. by Surata, s/o Bhaggu at P.S, Thana Bhawan, where a case under sections 147, 148, 149,302 IPC and section 3(2)(v) SC/ST Act was registered against 1. Om Prakash (applicant herein) 2. Shrawan 3. Ajay 4. Arvind and 5. Anand. The allegations made in the FIR, in brief, are that on 9.9.2007 at about 7.00 p.m. Rajan (hereinafter to be referred as deceased) son of the complainant Surata received a telephone call of Om Prakash, who called him to village Manti Hasanpur to carry Moni. The deceased had married Moni through Court marriage. On receiving telephone call the deceased went away to. village Manti Hasanpur to carry Moni. When the deceased did not come back, the complainant Surata along with Rameswar, Subhash, Aman and Ghaseetu went to village Manti Hasanpur in search of the deceased. When they reached village Manti Hasanpur, they saw that the accused Shrawan, Ajay, Arvind and Anand, all sons of Kashmira were causing marpeet with Rajan (deceased) by means of saria, Balkatti, chain, tabal and daranti etc. At the same time, the accused Om Prakash fired on Rajan by country made pistol, due to which, he sustained injuries and died on the spot. This incident is said to have occurred at about 8.30 p.m. 3. I have heard lengthy arguments of Sri Amit Daga, Advocate, appearing for the applicant and AGA for the State. 4. The first and foremost submission made by learned counsel for the applicant was that the incident of committing the murder of deceased Rajan had taken place in the night and since there was no source of light at the time of alleged incident, hence there was no occasion for the witnesses to identify the assailants. 4. The first and foremost submission made by learned counsel for the applicant was that the incident of committing the murder of deceased Rajan had taken place in the night and since there was no source of light at the time of alleged incident, hence there was no occasion for the witnesses to identify the assailants. It was also submitted in this context that due to previous enmity of kidnapping the daughter of applicant am Prakash by the deceased, false FIR was lodged by the complainant against the accused persons. 5. Next submission made by learned counsel was that all the witnesses, who were interrogated by the Investigating Officer during, investigation are pocket and got up witnesses, who are relatives of the complainant and hence, the statements of these witnesses do not carry any weight, because they all are interested witnesses. 6. It was further submitted by learned counsel for the applicant that motive as alleged in the FIR is false, because the girl Moni was already in possession of deceased and his family members and hence, there was no occasion for the applicant to make telephone call to the deceased to call him to village Manti Hasanpur for carrying Moni. It was also submitted in this context by learned counsel for the applicant that the deceased Rajan, his brother Ramvir and father Surata (complainant herein) had kidnapped Km. Moni, minor daughter of the applicant Om Prakash on 23th June 2007, about which an FIR was lodged by the applicant at P.5. Thana Bhawan on 28.6.2007 and after that FIR, Km. Moni had not come back and was in the custody of deceased and his family members and after the incident of committing murder of deceased by some unknown persons in the night, false story as alleged in the FIR of present case was concocted by the complainant. For this submission, my attention was drawn towards copy of the FIR dated 28.6.2007 (Annexure-7) 109-ged by the applicant Om Prakash against Rajan (deceased), his brother Ramvir, father Surata and wife of Surata about kidnapping of his daughter Km. Moni. 7. For this submission, my attention was drawn towards copy of the FIR dated 28.6.2007 (Annexure-7) 109-ged by the applicant Om Prakash against Rajan (deceased), his brother Ramvir, father Surata and wife of Surata about kidnapping of his daughter Km. Moni. 7. Drawing my attention towards the site plan (Annexure-4); it was submitted by learned counsel for the applicant that according to the site plan, the incident of committing the murder of deceased is said to have been witnessed by the witnesses from the distance of about 70 paces and since there was no source of light at the place of incident, hence it was not possible for the witnesses to recognize the assailants. 8. It was also submitted by learned counsel that incident of committing the murder of deceased is alleged to have occurred on 9.9 2007 at about 8.30 p.m., whereas the FIR is shown to have been registered in the same night at 9.15 p.m., which, being too prompt, cannot be believed. 9. Next submission made by learned counsel for the applicant' was that the deceased Rajan had long criminal history, who had many enemies and his murder was committed by his enemies in the night and nobody had seen the incident, but due to enmity, the applicant and other accused have been falsely roped in this case. To show the criminal history of the deceased Rajan, my attention was drawn towards para 14 of the affidavit accompanying the bail application. 10. It was further submitted by learned counsel for the applicant that according to the FIR version and statements of the witnesses, only one shot is said to have been fired on the deceased by the applicant, but according to the post mortem report (Annexure-3) there were two firearms wound of entry having their corresponding exit wounds, which makes the FIR version doubtful. 11. It was also submitted by learned counsel that main two witnesses namely Burata and Subhash Chandra have been examined in Trial Court in S.T. No. 41 of 2008 and hence, there is no chance of tempering with the evidence now. For this submission, my attention was drawn towards the statements of aforesaid witnesses recorded in S.T. No. 41 of 2008, copies whereof have been filed as Annexure SA-l and annexure SA-2 to the supplementary affidavit. 12. For this submission, my attention was drawn towards the statements of aforesaid witnesses recorded in S.T. No. 41 of 2008, copies whereof have been filed as Annexure SA-l and annexure SA-2 to the supplementary affidavit. 12. It was also submitted by learned counsel that the applicant is languishing in jail since 13.9.2007 and hence, on the basis of long detention period in jail, he deserves bail now, as due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated. 13. The bail application was vehemently opposed by the learned AGA contending that specific role of shooting the deceased has been• attributed to the applicant Om Prakash and hence, in this heinous crime, he should not be released on bail. 14. Regarding the FIR lodged by the applicant against the deceased Rajan and his family members about kidnapping his daughter, it was submitted by learned AGA that final report has been submitted in that case. It was also submitted by learned AGA that there was strong motive for the applicant to commit the under of deceased Rajan, who had solemnized marriage with the daughter of applicant, although they both belong to different castes. 15. I have carefully gone through the statements of the witnesses Surata and Subhash recorded in Trial Court in aforesaid Session Trial as well as other material on record. There is. sufficient prima facie evidence to show the complicity of the applicant in the incident of committing murder of deceased Rajan on the alleged date, tune and place. Specific role of shooting the deceased has been assigned to the applicant in the FIR and statements of the witnesses. Therefore, having regard to all these facts, but without expressing any opinion about the merit of the case, in this heinous crime, the applicant does not deserve bail. 16. In my considered opinion, the applicant can not be admitted to bail an the basis of the period of detention in jail also. In this regard, inference may be made to the case of Pramod Kumar Saxena v. Union of India and others, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. In this regard, inference may be made to the case of Pramod Kumar Saxena v. Union of India and others, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution, 17. Consequently, the bail application is hereby rejected. 18. The Trial Court concerned is directed to conclude the trial of the applicant within a period of six months applying the provisions of section 309 Cr.P.C. and avoiding unnecessary" adjournments. 19. SSP Muzaffar Nagar 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 for evidence in Session Trial No. 41 of 2008 without causing any delay. 20. The Office is directed to send .a copy of this order within 'a week to the Trial Court concerned and SSP Muzaffar Nagar for necessary action. Application Rejected.