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2009 DIGILAW 3830 (ALL)

HAST PRATAP SINGH v. STATE OF U. P.

2009-12-18

RAVINDRA SINGH

body2009
JUDGMENT RAVINDRA SINGH, J. – Heard Sri Dileep Kumar, Ani! Kumar Singh and Smt. Aradhana Chauhan, Gaurav Pratap Singh, and Sri Roshan Kumar Singh, learned Counsel for the applicant learned A.G.A for the state of U.P. This bail application has been filed by the applicant Hast Pratap Singh alias Ast Pratap Singh with a prayer that he may be released on bail in Case Crime No. 62213080517 of 2008 under sections 302, 504, I.P.C. and 27 of the Arms Act P.S. Gandhi Park district Aligarh. 2. The facts of the case in brief are that the F.I.R. of this case has been lodged by Kushal Pal Singh on 15/16.10.2008 at 4.00 a.m. in the night of the incident all the incident committed from 10.00 p.m. to 1.00 a.m. the applicant, co-accused Pappu and Ram Pal are named as accused in the F.I.R. It is alleged that on 16.10.2008 at about 1.00 a.m. Smt. Kusum Devi, sister in law of the first informant, conveyed a telephonic massage to the first informant that the co-accused Pappu has taken the deceased by calling him from his house at about 10.00 p.m. when he has not returned, a search was made, on that information the first informant Rajiv Singh came to the house of his brother and discussed the issue with the sister in law who told that since some amount of money was due upon the accused Pappu at the pretext of paying that amount he has called the deceased, then the first informant and Rajiv came to the house of the co-accused Pappu at about 2.00 a.m. and saw that the applicant and' the co-accused Ram Pal were hurling abuse upon the deceased and they were saying in abusive language that the total amount of' money is to be paid today and they discharged the shot by their firearm consequently, the deceased sustained injuries, thereafter they he fell down and died. The alleged occurrence has been witnessed by the first informant in the light of bulb in front of the house of the co-accused Pappu. 3. According to the post-mortem examination report the deceased has sustained firearm wound of entry on the back of the scalp and multiple firearm wounds in the area of 22 cm x 20 cm on the back of the chest of neck and above surface of the upper part of upper arm. 3. According to the post-mortem examination report the deceased has sustained firearm wound of entry on the back of the scalp and multiple firearm wounds in the area of 22 cm x 20 cm on the back of the chest of neck and above surface of the upper part of upper arm. The applicant applied for bail before the learned Sessions Judge, Aligarh who rejected the same on 11.5.2009. 4. It is contended by the learned Counsel for the applicant that the alleged occurrence has taken place in the dark hour of night, presence of the first informant and his relative Rajeev Singh at the alleged place of occurrence was highly doubtful even according to the prosecution version they are chance witnesses, statement of the first informant was recorded by the I.O. under section 161 Cr.P.C. on 16.10.2008, according to this statement the alleged incident was witnessed by him, Rajeev, Pramod Kumar and Deepak Kumar whereas the alleged eye witness were living at a distance of 20-30 km from the alleged place of occurrence. The co-accused Pappu gave a telephonic message to the control room on its No. 100 at about 1.30 p.m. on that information the police has taken the dead body to the Government Hospital, Aligarh where the inquest report was prepared. According to the statement of the witness Pramod Kumar who stated that the there was a Ramayan Path at the house of Deepak Kumar after completing that part he along with Raju were going to village, they heard shouting; they were hurling abuses, it appears that the deceased was under intoxication some not exchange were going on between the deceased and the co-accused Pappu, then at the exhortation of the co-accused Pappu the applicant discharged shot by his licensed D.B.B.L gun, which hit on the back side, after receiving the injuries, he fell down and died, there was moon light at that time, only the co. accused Pappu alias Gajendra and the applicant was mere, the co-accused Ram Pal was not present at the place of occurrence whereas according to the F.I.R. the co-accused Ram Pal was also there, who discharged the shots according to the statement of Rajeev also at the exhortation of the co-accused Pappu the applicant discharge shot by his D.B.B.L gun which hit on the back of the deceased, according to his statement also the co-accused Ram Pal did not participate in the commission of the alleged offence. According to the statement of the witness Rajeev Singh, the applicant discharged shot, which hit on his back, which shows that none of the witnesses were present there at the time of the alleged Occurrence. The prosecution version is not corroborated by the spot inspection note and the site plan because in the site plan the place of the electric bulb has not been shown by the I.O. The prosecution story is not corroborated by the postmortem examination report because according to the post mortem examination report the shot discharged by the applicant hit on the back of the deceased but according to the post mortem examination report the deceased has sustained two ante mortem injuries in which injury No.1 was on the back of scalp and injury No. 2 was on the back of the chest and neck including the anterior surface of the upper part of the upper arm, the same cannot be caused as alleged by the prosecution, the alleged time of occurrence is highly doubtful because 200 ml. pasty material was found in the stomach of the deceased. pasty material was found in the stomach of the deceased. But according to the eye witness also, the co-accused Ram Pal was not present at the place of occurrence but in the F.I.R. it has been mentioned that he also discharged shots which shows that the alleged occurrence has not been witnessed by any person, from the call details it has been established that the information to the police control room was given by mobile No. 9627318721 at 2.00 a.m., the allegation that the alleged occurrence was witnessed in the electricity light whereas at the time of the alleged incident, there was no electricity supply in the whole of the city and the applicant was arrested by the police on 17.10.2008 along with his 12 bore gun but according to the ballistic expert report, the gun of the applicant was not used in the commission of the offence, the applicant was having no motive or intention to commit the alleged offence. The co-accused Pappu alias Gajendra has been released on bail by another bench of this Court on 10.4.2009 in Criminal Misc. Bail Application No. 8933 of 2009. The applicant is having no criminal antecedent. 5. In reply to the above contention it is submitted by the learned A.G.A. that the alleged occurrence has been witnessed by the first informant and others, the F.I.R. has been lodged promptly, according to the F.I.R. and the statement of the witnesses the applicant also discharged shots, it has been specified that the shot discharged by the applicant hit the deceased. According to the post mortem examination report the deceased has sustained two ante mortem firearm wound of entry, the same may be caused by the single shot, which were on the back side of the deceased, if any information has been given to the control room at about 2. a.m. the same is not relevant at this stage, there is no material contradiction in the side plan and the spot inspection note, the case of the “applicant is distinguishable with the co-accused Pappu alias Gajendra because according to me statement of the witnesses the role for exhortation was assigned to him whereas the role of causing gun shot injury is assigned to the applicant, therefore, the applicant may not be released on bail. 6. 6. Considering the facts circumstances of the case submission made by the learned Counsel for the applicant and the learned A.G.A. and from the perusal of the statement of the witnesses who stated ill their statements recorded under section 161 Cr.P.C. that at the exhortation of the co-accused Pappu, the applicant discharged the gun shot, which hit on the back of the deceased. According to the post-mortem examination report the deceased has sustained both ante mortem injuries on the back portion of the body the case of the applicant is distinguishable with the case of Pappu alias Gajendra, who has been leased on bail by another bench of this Court and. without expressing any opinion on the merits of the case the applicant is no entitled for bail, then therefore, the prayer for bail is refused. Accordingly this application is rejected.