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2009 DIGILAW 3064 (ALL)

Anil Balmiki v. State Of U. P.

2009-09-07

VIJAY KUMAR VERMA

body2009
JUDGMENT: Vijay Kumar Verma, J. Applicant's counsel has filed supplementary affidavit, which is taken on record. 2. Heard Sri Raj Kamal Tripathi, Advocate, appearing for the applicant, Sri J.R.S. Tomar, counsel for the complainant and AGA for the State. 3. The allegations made in the FIR lodged on 11.04.2006 at 10:50 a.m. by Praveen Shukla @ Jeetu at P.S. Kidwai Nagar, district Kanpur Nagar, in brief, are that the applicant Anil Balmiki committed the murder of deceased Prashant Shukla @ Nitin on 11.04.2006 at about 10:00 a.m. by causing injuries to him by means of firearm. 4. The main submission made by learned counsel for the applicant is that father of the deceased and some other independent witnesses have not been examined by the prosecution and have been discharged and hence the applicant is entitled to be released on bail, because only evidence against him is the statement of the complainant Praveen Shukla, who has been examined in trial court in S.T. No. 740 of 2006 as P.W. 1. 5. Next submission made by learned counsel is that there was no motive for the applicant to commit the murder of deceased. 6. Further submission made by learned counsel is that watery fluid only was found in the stomach of deceased at the time of post-mortem examination, which makes the prosecution story doubtful, as at about 10.00 a.m., some food material ought to have been found in the stomach of deceased, who is alleged to have been going on duty. For this submission attention of the Court has been drawn towards post-mortem report ( paper no. 12). 7. It is also submitted by learned counsel that ante-mortem injuries are not possible to be caused by 315 bore country made pistol and these injuries can only be caused by rifle shot, and hence on this ground, the applicant should be released on bail, because he is alleged to have fired from country made pistol and not by rifle. 8. Further submission made by learned counsel is that no blood was found on the shirt of the complainant Praveen Shukla and hence on this ground his presence at the place of incident and story of carrying the deceased by him to hospital in injured condition becomes doubtful. For this submission attention of the Court was drawn towards the case of State of Punjab Vs. Harbans Singh and another 2004 SCC (Cri) 75. For this submission attention of the Court was drawn towards the case of State of Punjab Vs. Harbans Singh and another 2004 SCC (Cri) 75. The contention of the learned counsel is that had the complainant carried the deceased by him to hospital, then his cloths ought to have contained blood stains of the blood of deceased, whereas no blood was found on the cloths of complainant. 9. It is also submitted by learned counsel that independent eye-witness Praveen Yadav has not supported the case of prosecution and has turned hostile, as is evident from his statement recorded in ST No. 740 of 2006, copy whereof has been filed with supplementary affidavit. 10. Next submission made by learned counsel is that the applicant is languishing in jail for more than three years and hence on the basis of long incarceration in jail, he is entitled to be released on bail, as due to delay in trial, his fundamental right of speedy trial envisaged under article 21 of the constitution is being violated. 11. The bail application has been vehemently opposed by learned counsel for the complainant and AGA contending that specific role of shooting the deceased has been assigned to the applicant and hence in this heinous crime, he should not be enlarged on bail. 12. I have given my thoughtful consideration to the submissions made by the parties' counsel and also perused the entire material on record. There is sufficient prima facie evidence to show that it was the applicant Anik Balmiki, who had fired on the deceased Prashant Shukla @ Nitin, due to which he sustained injuries and died in the way when he was being carried to Sushila Nursing Home. The post-mortem report shows that firearm wound of entry having its corresponding exit wound was found on the person of deceased at the time of post-mortem examination. Therefore, having regard to all these facts and taking the evidence available against the applicant, in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail. 13. In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. Therefore, having regard to all these facts and taking the evidence available against the applicant, in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail. 13. In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008(68) ACC 115, 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. 14. Consequently, the bail application is hereby rejected. 15. The trial court concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months positively making sincere efforts and applying the provisions of section 309 Cr.P.C. 16. S.S.P. Kanpur Nagar, is also 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 witnesses are produced in S.T. No. 740 of 2006 without causing any delay. 17. Sessions Judge, Kanpur Nagar is also directed to ensure that trial of the applicant is concluded within aforesaid period of six months. 18. The office is directed to send a copy of this order within a week to the trial court concerned, Sessions Judge and S.S.P. Kanpur Nagar for necessary action.