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2011 DIGILAW 2152 (ALL)

Dharmendra v. State of U. P.

2011-09-14

RAVINDRA SINGH

body2011
Ravindra Singh, J.;- Heard Sri Rahul Chaturvedi, learned counsel for the applicant, learned A.G.A. and Sri Rajul Bhargave, learned counsel for the complainant. 2. This bail application has been filed by the applicant Dharmendra with a prayer that he may be released on bail in case crime NO. 252 of 2010 under sections 147, 148, 149, 307, 302, 504, 506 IPC read with section 34 IPC and section 7 Crl. Law Amendment Act, P.S. Koshikalan, District Mathura. 3. The facts in brief of this case are that FIR has been lodged by the Devendra Singh on 19.4.2010 at 6.10 P.M. in respect of the incident allegedly occurred on 19.4.2010 at about 5.00 P.M. The applicant and four other co-accused are named in FIR as accused. It is alleged that there was old enmity of his family with the family of Dharmendra son of Vikram, same was settled by the villagers and others about five and six years prior the alleged incident. They were coming and going to the house of each other. On 19.4.2010 at about 5.00 P.M. the first informant, his uncle deceased Pradhan Param and Pooran Singh, his brother Yaad Ram, Jagdish, Shyam Sunder and Rajkumar were playing cards in the Varanda of Jagdish. All of sudden co-accused Dharmendra son of Vikram, Nem Singh @ Nema, Jagan, Kumpi @ Kunwar Pal, Kaluwa, Mukesh, applicant Dharmendra and co-accused Vijay Pal appeared with fire arms discharged the shots, then the panic was created and all the persons started running here and there to save their lives. But the miscreants caused three or four gun shot injuries to the uncle of the first informant. The uncle of the first informant deceased Param died instantaneously. The accused persons chased the first informant and other persons also by way of discharging the shots. According to the post mortem examination report the deceased had sustained 11 ante mortem injuries in which injuries No. 1,3 and 5 are fire arm wounds of entry, injuries no. 2,4 and 6 are fire arm wounds of exit. Injuries no. 7 and 8 are abrasions, injury No. 9 was lacerated wound, injuries No. 10 and 11 are pin head size of abrasions. The applicant applied for bail before learned Sessions court, Mathura, the same has been rejected by learned Addl. Sessions Judge, Court No. 4, Mathura on 27.6.2011. 4. 2,4 and 6 are fire arm wounds of exit. Injuries no. 7 and 8 are abrasions, injury No. 9 was lacerated wound, injuries No. 10 and 11 are pin head size of abrasions. The applicant applied for bail before learned Sessions court, Mathura, the same has been rejected by learned Addl. Sessions Judge, Court No. 4, Mathura on 27.6.2011. 4. It is contended by learned counsel for the applicant that the alleged occurrence had taken place in the evening hour of 19.4.2010. The presence of the witnesses at the alleged place of occurrence is highly doubtful because there was no injured witness to support the prosecution story. The alleged occurrence has not taken place in the alleged manner, it has taken place in some other manner, it has not been witnessed by any person. The FIR has been lodged after thought consultation and only on the ground of old enmity. The applicant has been falsely implicated. According to the FIR itself the enmity of the first informant was with co-accused Dharmendra son of Vikram. The applicant was having no concerned with the family affairs of the Dharmendra. In FIR eight persons have been named as accused. It is alleged that they discharged the shot indiscriminately but it is surprising that only the deceased has sustained injury and no other person has sustained any gun shot injury. The prosecution story has is corroborated by the post mortem examination report also because according to the post mortem examination report the deceased has sustained some abrasion and laceration which has not been explained. In the present case the I.O. has recorded the statement of Devendra Singh and Raj Kumar. The applicant and co-accused entered into the house, the applicant after catching hold his right hand and he had caused injury by Butt of the gun. It is alleged that eight persons were having the fire arm, they discharged the shots but the deceased has sustained only three fire arm wounds of entry. The applicant has been falsely implicated. Devendra Singh, the first informant of this case has succeeded in getting yet another FIR registered against the applicant, two sons of Jagan on 2.2.2011 in case crime No. 70 of 2011 under sections 307, 452, 506, 427 IPC at P.S. Kosi Kalan. The accused persons of the above mentioned case are pressuring the first informant on phone to have a compromise. The accused persons of the above mentioned case are pressuring the first informant on phone to have a compromise. The present FIR is nothing but an arm twisting device, to multiply, the severity and gravity of the earlier offence. The applicant is in jail since 6.2.2011. The case of the applicant is based on the same footing with the case of the co-accused Jagan who has been released on bail by the another bench of this court on 8.9.2010 in Crl. Misc. Bail Application No. 24914 of 2010 and the co-accused Nem Singh @ Nema has also been released on bail by the another of this court on 1.9.2010 in Crl. Misc. Bail Application No. 24275 of 2010, the co-accused Vijay Pal and Kaluwa have been released on bail by the learned Sessions Judge, Mathura on 22.7.2010. The case of the applicant is based on the same footing with the case of above mentioned co-accused. He may also be released on bail. 5. In reply of the above contention, it is submitted by learned A.G.A. and learned counsel for the complainant that the applicant and other co-accused persons are named in the FIR, it is a broad day light murder, in a pre planned manner the applicant and other co-accused persons came to the place of occurrence and committed the murder of the deceased Param on account of old enmity, though it was settled by the applicant. According to the FIR applicant and other co-accused persons discharged the shots causing the injury to the deceased. But according to the statement of the witnesses recorded under section 161 Cr.P.C. the first informant Devendra Singh stated that the accused persons came in the place of occurrence where the deceased and other persons were playing the cards. The co-accused persons were armed with fire arms. The deceased lifted by the applicant, co-accused Jagan, co-accused Nem Singh @ Nema and co-accused Mukesh, thereafter the co-accused Dharmendra, co-accused Kumpi @ Kunwar Pal, Kaluwa and co-accused Vijay Pal discharged the shots by their country made pistols. Thereafter the applicant used the butt blow causing the injury on the chest of the deceased. The deceased lifted by the applicant, co-accused Jagan, co-accused Nem Singh @ Nema and co-accused Mukesh, thereafter the co-accused Dharmendra, co-accused Kumpi @ Kunwar Pal, Kaluwa and co-accused Vijay Pal discharged the shots by their country made pistols. Thereafter the applicant used the butt blow causing the injury on the chest of the deceased. The same statement has been given by the witness Raj Kumar and learned Sessions Judge has illegally granted the bail to the co-accused Kaluwa and Vijay Pal on 22.7.2010, the same has been challenged before the High Court by way of filing the bail cancellation application No. 19903 of 2010, the same is pending. The applicant has mis-used the liberty of bail also. The accused persons are extending the threats, its report has been lodged to the police station concerned by the complainant Devendra Singh and the FIR has been lodged by Devendra Singh on 2.2.2011 under sections 307, 452, 506, 427 IPC against four other accused persons. In case the applicant is released on bail, he shall tamper with the evidence. 6. Considering the submissions made by learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and from the perusal of the record it appears that it is a broad day light murder, the FIR has been promptly lodged, the applicant and seven other co-accused persons are named in the FIR. The allegations in FIR is that the accused persons came to the place of occurrence, they discharged the shots upon the deceased, but during investigation it has been specified by the first informant and witness Raj Kumar that accused persons entered into the house, the deceased was lifted by the applicant, co-accused Jagan, co-accused Mukesh and co-accused Nem Singh @ Nema then the co-accused Dharmendra, Kumpti @ Kunwar Pal, Kaluwa and Vijay Pal caused injury on his person by using country made pistol, thereafter the applicant caused injury on the chest of the deceased by using the Butt blow and the deceased has sustained lacerated wound on the right side chest marked as ante mortem injury No. 9 and he had sustained abrasion on the right side chest marked as ante mortem injury No. 8. The case of the applicant is distinguishable with the case of co-accused Jagan and Nem Singh @ Nema who have been released on bail by the another bench of this court. The case of the applicant is distinguishable with the case of co-accused Jagan and Nem Singh @ Nema who have been released on bail by the another bench of this court. At this stage, it is not proper to record any opinion with regard to the order passed by learned Sessions Judge granting the bail to co-accused Vijay Pal and Kaluwa vide order dated 22.7.2010 which is under challenged vide bail cancellation application No. 19903 of 2010. The reference with regard to tampering with the evidence have also been lodged and without expressing any opinion on the merits of the case the applicant is not entitled for bail. The prayer for bail is refused. 7. Accordingly this application is rejected.