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2009 DIGILAW 3148 (ALL)

UMA SHANKAR v. STATE OF U. P.

2009-09-16

VIJAY KUMAR VERMA

body2009
JUDGMENT VIJAY KUMAR VERMA, J. 1. Prayer for bail in this application under section 439 of the Code of Criminal Procedure (in short 'the Cr.P.C.), has been made on behalf of applicant Uma Shankar s/o Kalka, in Case Crime No. 220 of 2008, under sections 147, 148. 149, 307 and 302, IPC, P.S. Kotwali Kalpi, District Jalaun 2. An FIR (Annexure-I) was lodged on 18.8.2008 at 10.20 a.m. by Smt. Usha Devi, wife of the deceased Rana Sudhir at P.S. Kotwali Kalpi (Jalaun), against Uma Shankar (applicant herein), Hari Shankar, Bal Singh, Jeer Singh, Sone Lal and Kishan Bihari. Shorn of unnecessary details, the allegations made in the FIR, in brief, are that the accused persons caused l1Iarpeet by means of kull1ari and fired from country made pistols, thereby causing injuries to Rana Sudhir and Ramesh Chandra on 17.8.2008 at about 8.30 p.m. at the house of Gaya Prasad, situated in village Devkali. It is also alleged that after committing the murder of Rana Sudhir, his died body was thrown in Yamuna river, which was recovered under Kalpi Bridge on the bank of Yamuna. 3. I have heard arguments at length of Sri Devendra Swaroop, 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 in addition to the applicant Umashankar, other accused also are said to have fired on the deceased Rana Sudhir as per FIR version, and no specific role of causing injuries to the deceased has been attributed in the FIR to the applicant. It was also submitted in this context by learned Counsel that at the time of post mortem examination, only one ante mortem firearm wound of entry having its corresponding exit wound was found on the person of deceased and hence on this ground, the applicant should be released on bail because it cannot be said that he alone was the author of ante mortem firearm injury sustained by the deceased. 5. Next submission made by learned Counsel was that no kulhari injury was found on the person of injured Ramesh Chandra and hence the story of the prosecution becomes doubtful, as injuries to Ramesh Chandra also are said to have been caused by firearms and kulhari. 6. 5. Next submission made by learned Counsel was that no kulhari injury was found on the person of injured Ramesh Chandra and hence the story of the prosecution becomes doubtful, as injuries to Ramesh Chandra also are said to have been caused by firearms and kulhari. 6. It was also submitted by learned Counsel for the applicant that the deceased Rana Sudhir had a long criminal history and he was having many enemies, who had committed his murder and due to previous enmity, the applicant has been falsely roped in this case. 7. Further submission made by learned Counsel was that no injury caused by kulhari was found on the person of deceased at the time of post mortem examination, and hence on this ground also, the case of prosecution becomes doubtful, because according to the injured witness Ramesh Chandra, injuries by kulhari also are said to have been caused to the deceased. 8. It was further submitted by learned Counsel that although other persons are also said to have accompanied the deceased to attend the feast at the house of Gaya Prasad, but except Ramesh, no other witness had sustained any injury, which also makes the case of prosecution doubtful. 9. Next submission made by learned Counsel was that co-accused Hari Shankar and Bal Singh have been granted bail by another Bench of this Court vide order dated 13.01.2009, passed in bail application No. 946 of 2009 and on the basis of that bail order, another co-accused Kishan Behari also has been granted bail vide order dated 27.01.2009, passed in Bail Application No. 2016 of 2009, hence on the basis of the principle of parity, the applicant also deserves bail. 10. It was also submitted by learned Counsel that the incident is said to have occurred on 17.8.2008 at 8.30 p.m., but FIR was lodged with great delay on 18.8.2008 at 10.20 a.m., which is fatal to the case of prosecution. 11. Next submission made by learned Counsel was that no food material was found in the stomach of deceased, although the deceased and witnesses are said to have started taking meal in the feast at the house of Gaya Prasad and on this ground also, the story of causing injuries to the deceased and injured Ramesh in feast at the house of \0Gaya Prasad becomes doubtful. The contention of the learned Counsel was that if the deceased had started to take meal and his death was caused immediately thereafter, then some food material ought to have been found in his stomach at the time of post mortem examination, whereas no food material was available in the stomach• of deceased, as is evident from the post mortem report (Annexure-2). 12. Further submission made by learned Counsel was that there was no motive for the applicant to commit the murder of deceased, whereas motive was there to the witnesses to falsely implicated the applicant. 13. It is also submitted by learned Counsel that the dead body of deceased was not found at the house of Gaya Prasad and hence on this ground also, the case of the prosecution becomes doubtful. 14. Further submission made by learned Counsel was that the applicant is languishing in jai! since 17.9.2008 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. 15. The bail application was vehemently opposed by the learned AGA contending that specific role of causing firearm injury to the deceased has been assigned to the applicant Uma Shankar in the statement (Annexure-5 to the supplementary affidavit) of injured witness Ramesh and statements of other witnesses and hence, on the ground of principle of parity, the applicant should not be released on bail because his role was not identical to other accused persons, who have been granted bail. It was also submitted by learned AGA that otherwise also, parity can not be the sole ground for bail. Reliance has been placed on Shahnawaz @ Slzm1lt v. State of U.P. 16. About non-availability of food material in the stomach of deceased at the time of post mortem examination, it was submitted by learned AGA that Just as the deceased and other persons had started to take meal in the feast at the house of Gaya Prasad, the accused persons reached there and incident took place and hence due to non-availability of any food material in the stomach of deceased at the time of post mortem examination, the incident is not falsified. It was also submitted by learned AGA in this context that due to the firearm injury sustained by the deceased his stomach was lacerated and food material, if any taken by the deceased, might have gone out. 17. I have given my thoughtful consideration to the submissions made by learned Counsel for the parties and carefully gone through the entire material on record. The main witness of this case is injured Ramesh, whose presence at the place of incident is not doubtful, because he has sustained injuries as is evident from injury report Annexure-3. In his statement (annexure-5 to the supplementary affidavit), the witness Ramesh has stated that the accused Uma Shankar was having country made pistol, who had fired on the deceased Ram Sudhir. His statement is corroborated by the witnesses Chhotey Lalla and Bhoop Singh in their statements, copies whereof have been filed as Annexure SA-3 and SA-4 to the supplementary affidavit. Specific role of causing firearm injuries to the deceased Ram Sudhir has been attributed to the applicant Uma Shankar in the statements of these witnesses. According to the post mortem report, the deceased had died dUE to shock as a result of ante mortem firearm injury. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail. 18. In my considered opinion the applicant can not be admitted to bail on the basis of the period of detention in jail also. In this regard, reference 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. 19. Consequently, the bail application is hereby rejected. 20. 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. 21. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 19. Consequently, the bail application is hereby rejected. 20. 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. 21. SSP Jalaun 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 arising out of Crime No. 220 of 2008 of P.S. Kotwali Kalpi District Jalaun without causing any delay. 22. The Office is directed to send a copy of this order within a week to the Trial Court concerned and SSP Jalaun for necessary action. Bail Rejected.