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2010 DIGILAW 2223 (ALL)

Suresh v. State Of U. P.

2010-07-28

AMAR SARAN, S.C.AGARWAL

body2010
JUDGMENT: Amar Saran, S.C. Agarwal, JJ. We have heard learned counsel for the appellants, learned AGA for the State, learned counsel for the complainant and perused the impugned judgment and trial court's record. Since both the aforementioned criminal appeals arise out of a common judgment and order, the prayer for bail in both the appeals is being heard and disposed of by a common order. Sri P.N. Mishra, Senior Advocate, learned counsel for the appellants Suresh and Babloo S/o Mom Raj submitted that these two appellants were not arrested on spot but are alleged to have fled away from the scene of crime in a car alongwith co-accused Lokesh, Arif and Kamal but co-accused Lokesh, Arif and Kamal were acquitted by the trial court and these two appellants were convicted under Section 120B IPC. It was contended that there was no evidence to show the involvement of Suresh and Babloo S/o Mom Raj in the murder of Jai Prakash Goel, father of P.W.-7. It was argued that the motive alleged by the prosecution is that these two appellants have taken a sum of Rs. 2.5 lacs from the deceased on the pretext of providing him land but neither land was transferred to the deceased nor the money was returned and that the deceased had gone to Sikandrabad to meet Suresh and Babloo S/o Mom Raj. It was contended that initially, the written report Ext. Ka-18 submitted by the son of the deceased to the police after receiving the information of murder of his father, did not mention that the deceased had gone to Sikandrabad to meet these two appellants nor there was any mention therein that the deceased had given any money to these two appellants. It was further argued that the independent witnesses cited in the FIR lodged at the instance of a Senior Police Officer, there was no mention of five persons including these two appellants running away from the scene of crime in a Santro car. It has not been shown by the prosecution as to how the police witnesses came to know the names of these two appellants. 2. Sri Dilip Kumar, learned counsel for the appellant Arun @ Vinne submitted that Arun @ Vinne is alleged to have been arrested on the spot and a country-made pistol 315 bore and four live cartridges were recovered from his possession. 2. Sri Dilip Kumar, learned counsel for the appellant Arun @ Vinne submitted that Arun @ Vinne is alleged to have been arrested on the spot and a country-made pistol 315 bore and four live cartridges were recovered from his possession. It was contended that the bullets found inside the dead-body were not sent to the Forensic Science Laboratory for verification that these bullets were fired from the pistol recovered from appellant Arun @ Vinne. It was submitted that Arun @ Vinne had no enmity with the deceased and had no reason to commit his murder. It was further submitted that no independent eye witness of the incident has been examined by the prosecution and all the police witnesses examined during the trial were not eye witnesses of the crime and had reached at the place of occurrence after the incident. Learned AGA and learned counsel for the complainant submitted that the deceased Jai Prakash Goel had given Rs. 2.5 lacs to Suresh and Babloo S/o Mom Raj for purchasing land but land was not provided nor the money was returned. The deceased was pressurising these two appellants to return money and this provided the motive to Suresh and Babloo S/o Mom Raj to plan the murder of Jai Prakash Goel with the help of other co-accused. It was further submitted that the police witnesses examined during the trial were passing nearby and after hearing the firing of two shots, they reached the place of occurrence and found that five persons Suresh, Babloo S/o Mom Raj, Kamal Yadav, Lokesh and Arif running away from the place of occurrence in Car No. D.L.4C-AP 5246 whereas two persons armed with country-made pistol were running away on foot, who were chased by the police and were apprehended. They disclosed their names as Arun @ Vinne and Babloo S/o Chandra Pal. Country-made pistol 315 bore and live cartridges were recovered from their possession. There was a spent cartridge case in the barrel of pistol recovered from Babloo S/o Chandra Pal whose case was later sent to Juvenile Justice Court for trial. It was contended that both the pistols and empty cartridges recovered from Arun @ Vinne and Babloo S/o Chandra Pal were sent to Forensic Science Laboratory, which found that the barrel of both the pistols contained firing residue including Nitrite, Lead, Copper and Nickel. It was contended that both the pistols and empty cartridges recovered from Arun @ Vinne and Babloo S/o Chandra Pal were sent to Forensic Science Laboratory, which found that the barrel of both the pistols contained firing residue including Nitrite, Lead, Copper and Nickel. Spent cartridge case found in the barrel was fired from the pistol recovered from Babloo S/o Chandra Pal. 3. Two fire-arm wounds of entry were found on the body of the deceased. The appellant Arun @ Vinne was found running from the place of occurrence with a fire-arm in his hand, which was recently fired as is apparent from the report of Forensic Science Laboratory and after considering the submissions of both the parties, we are of the considered opinion that Arun @ Vinne is not entitled to bail. As regards the appellants Suresh and Babloo S/o Mon Raj, their names did not find place in the FIR nor the number of vehicle, which was used by them to flee away, was mentioned therein. Even the written report given by the son of the deceased later on, which is Ext. Ka-18 did not make any mention of these two appellants nor there is any mention of any money having been given to them by the deceased. They were charged only under Section 120B IPC but except motive and evidence of fleeing away from the scene of occurrence in a Car, there is no evidence against them. The police witnesses have named them in their statement but surprisingly their names does not find place in the FIR or the recovery memo. In view of these facts, we are inclined to grant bail to the appellants Suresh and Babloo S/o Mom Raj. The bail application of appellant Arun @ Vinne is rejected. 4. Let the appellants Suresh and Babloo S/o Mom Raj, convicted and sentenced by the Addl. District and Sessions Judge, Court No. 5, Bulandshahar in S.T. No. 1053 of 2007 arising out of Case Crime No. 499 of 2007, under Section 120B IPC, P.S. Sikandrabad, District- Bulandshahar be released on bail on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned on depositing 50 % amount of fine imposed by the trial court. The realisation of remaining 50 % amount of fine shall remain stayed during the pendency of appeal.