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2011 DIGILAW 865 (ALL)

Kishan Sharma v. State of U. P.

2011-04-04

VIKRAM NATH

body2011
Vikram Nath, J.;- By means of this application the applicant has sought bail in Case Crime No. 1526/2009, under Section 307 IPC, P.S. Sihani Gate, District Meerut. 2. According to the contents of the FIR, on 16.9.2009 the complainant Rishikant Goel along with his father Mahendra Kumar Goel (injured) was returning from his office when a motorcycle coming from behind, on which there were two passengers came to the side of their car and three consecutive shots were fired by them causing injuries to Mahendra Kumar Goel and thereafter the said motorcycle borne miscreants fled away. It further mentions that the incident is of 8.45 p.m. in the evening. It further mentions that Kishan Sharma and Rajesh Sharma @ Guddu Pandit, r/o Chandani Chawk bore enmity with the complainant side; that they had earlier physically assaulted the complainant's father in 1998 and had threatened him to hand over the property purchased by him to the said persons or else they would eliminate him. It further mentions that thereafter also they had intimidated the complainant's side on a number of occasions; that about 15/20 days earlier they had entered into the office of the complainant and had threatened the father of the complainant of being eliminated and it is a result of all this that they have attacked and shot his father in which he has been injured. 3. The injury report confirms the gun-shot injury in the chest and abdomen damaging the right Subclavial Artery. The injured was initially given first-aid at Yashoda Hospital and was thereafter shifted to Indrastha Apollo Hospitals, Delhi where he was admitted as a surgery case and taken for surgery. The transclavicular right axillary artery was repaired and the bullet was retrieved. He was shifted to ICU and upon gradual improvement he was mobilized and thereafter shifted to the ward and was discharged on 25.9.2009. The complainant and the injured in their statements under Section 161 Cr.P.C. have fully corroborated the FIR version. This bail application has been filed by Kishan Sharma, one of the two co-accused. 4. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri H.C. Mishra, learned counsel appearing for the the applicant, Sri Satish Trivedi, learned Senior Advocate assisted by Sri Nitin Gupta and Sri Kuldeep Saxena, learned counsels for the complainant and the learned A.G.A. 5. This bail application has been filed by Kishan Sharma, one of the two co-accused. 4. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri H.C. Mishra, learned counsel appearing for the the applicant, Sri Satish Trivedi, learned Senior Advocate assisted by Sri Nitin Gupta and Sri Kuldeep Saxena, learned counsels for the complainant and the learned A.G.A. 5. Sri V.P. Srivastava, learned Advocate has advanced two arguments in order to dislodge the first information report, consequently entitling the applicant for bail. The first argument is that the first information report as recorded seems to be improving sentence by sentence. According to him on account of enmity as admitted in the FIR the applicant has been falsely implicated. The FIR is tutored. In the opening part of the FIR, which he refers to as the first part, the assailants have not been named; what has been mentioned is that two motorcycle borne assailants came from behind and opened fire at the father of the complainant but it does not disclose the names. The second part describes about the enmity between the accused and the complainant side and the third and the last part nominates the accused of having committed the crime. This according to Sri Srivastava is an improvement and the fact is that the complainant was not able to recognize the assailants. The applicant and co-accused have been falsely implicated on account of enmity. 6. The second argument advanced by Sri Srivastava, learned Senior counsel is based on the plea of alibi. According to him the applicant Kishan Sharma was admitted to Jail No.7, Tihar, New Delhi on 14.9.2009 in a case under Sections 107/151 Cr.P.C. Said Kishan Sharma was released from jail on 16.9.2009 at 8.06 p.m., which is the date of the incident. In support of his submission he has referred to a reply of the Superintendent, Central Jail No.7, Tihar, New Delhi dated 9.11.2009 in response to the application filed by Sri Kishan Chand (referred to as Kishan Sharma in the FIR) seeking details about his incarceration in the jail, which has been filed as Annexure-5 to the affidavit filed in support of the bail application. Further he has referred to the jail warrant issued by the Central Executive Magistrate, Delhi filed as part of Annexure-R.A.-I with the rejoinder affidavit. Further he has referred to the jail warrant issued by the Central Executive Magistrate, Delhi filed as part of Annexure-R.A.-I with the rejoinder affidavit. According to this jail warrant the applicant was produced before the Magistrate on 14.9.2009 but as he failed to produce any surety, he was remanded to judicial custody to be produced before the Magistrate again on 16.9.2009. Further there is an endorsement dated 16.9.2009 of the Special Judicial Magistrate that personal bonds are accepted and the applicant be released if not required in any other case. Based upon these two documents the arguments is that the applicant having been released from the jail on 16.9.2009 at 8.06 p.m. could not have committed the crime on the same day of his release at 8.45 p.m., as the distance of the place of incident from Tihar Jail was about 44 km and within a span of 39 minutes it was an impossibility to reach at the place of crime with heavy traffic congestion in the evening. He has thus tried to establish that it was an impossibility that the applicant could be present at the time and place of the crime. 7. In reply Sri Satish Trivedi, learned Senior Advocate has submitted that the FIR in fact is an honest incorporation of what the complainant disclosed. According to him the description as given by the complainant of the entire incident has been truthfully recorded. There is no element of any tutoring in the FIR in order to implicate the applicant and the co-accused. With regard to plea of alibi Sri Trivedi has submitted that at the stage of bail plea of alibi cannot be taken into consideration as the person claiming the plea of alibi has to prove it by cogent evidence during trial and a plea of alibi can only be considered during trial for the purpose of acquittal/conviction but not for bail. According to him in case a plea of alibi based upon some allegations or certain documents is accepted without it being proved and established, it would result into misuse and abuse of process of law. According to him in case a plea of alibi based upon some allegations or certain documents is accepted without it being proved and established, it would result into misuse and abuse of process of law. In support of his submission he has relied upon the judgment of the Apex Court in the case of Rajendra Singh vs. State of U.P. and another [ AIR 2007 SC 2786 ], further an order of the Apex Court in the case of Naresh Pal Singh vs. Raj Karan and another [1999(9) Crimes 124 (SC)] and lastly to an order of the learned Single Judge of this Court dated 3.11.2006 passed in Criminal Misc. Bail Application No.227 of 2006, Ram Kumar Agrahari vs. State of U.P. Sri Trivedi has also stated that the other co-accused Rajesh Sharma, who is own brother of the complainant is still absconding. The police has already taken steps under Sections 82/83 Cr.P.C. It is further submitted that an award of Rs.5,000/- has been declared by the Senior Superintendent of Police, Ghaziabad under the provisions of Para 464-A of the U.P. Police Regulations, for facilitating the arrest of hardened criminal. 8. Having considered the submissions advanced and having perused the material on record, in the opinion of the Court the applicant would not be entitled to be enlarged on bail for the following reasons : (i) The medical report, the statements of the complainant and the injured recorded under Section 161 Cr.P.C. fully support and corroborate the prosecution case as set up in the FIR. (ii) From a perusal of the FIR I find that the complainant has given a very natural description of the incident which has been recorded verbatim. He has first described the actual incident then the enmity and lastly that the accused were the persons who had fired at the complainant's father. It is not a case where the FIR was against unknown persons and in the statements either before the Investigating Officer or before the court that the complainant or the other co-accused had been named. It matters tittle as to in what order the facts have been narrated. Apparently there is no cause to disbelieve or to hold that the FIR was tutored. 9. It matters tittle as to in what order the facts have been narrated. Apparently there is no cause to disbelieve or to hold that the FIR was tutored. 9. Coming to the plea of alibi, the statement of the counsel for the applicant may have some force but at the same time it would require evidence to establish the plea of alibi. In the case of Rajendra Singh (supra) the Apex Court while dealing with a plea of alibi having been accepted without it being proved in the trial held as follows : 7. That apart, the plea taken by the respondent Kapil Dev Singh in his petition under Section 482 Cr.P.C. was that of alibi. Section 103 of the Evidence Act says that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is proved by any law that the proof of that fact lie on any particular person. The second illustration to section 103 reads as under : "B wishes the Court to believe that at the time in question, he was elsewhere. He must prove it." 10. This provision makes it obvious that the burden of establishing the plea of alibi set up by the respondent No. 2 in the petition filed by him under Section 482 Cr.P.C. before the High Court lay squarely upon him. There is hardly any doubt regarding this legal proposition. See Gurcharan Singh v. State of Punjab AIR 1956 SC 460 , Chandrika Prasad Singh v. State of Bihar AIR 1972 SC 109 and State of Haryana v. Sher Singh AIR 1981 SC 1021 . This could be done by leading evidence in the trial and not by filing some affidavits before the High Court. In such a case the prosecution would have got an opportunity to cross-examine those witnesses and demonstrate that their testimony was not correct. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Learned counsel for the appellant has submitted that in fact no affidavits were filed in the High Court but what was filed were copies of two or three affidavits which were given by some persons before the Superintendent of Police, Allahabad. Thus, there was absolutely no legal evidence in support of the plea of alibi of Kapil Dev Singh, which the High Court chose to rely upon and accept for the purpose of quashing the order passed by the learned Sessions Judge. 8. Shri S.R. Singh, learned senior counsel for the respondent No. 2, has submitted that though the statements recorded by the investigating officer under Section 161 Cr.P.C. are not substantive piece of evidence, but the High Court while exercising power under Section 482 Cr.P.C. could have looked into attending circumstances, namely, the statements and the affidavits filed by some of these persons before the Superintendent of Police, Allahabad. Learned counsel has also submitted that the summoning order itself must exhibit special circumstances warranting such a course of action and if no special circumstances are demonstrated in the order, the summoning order is per se illegal. Learned counsel has further submitted that the trial of co-accused Daya Singh has concluded and he has been acquitted by the learned Sessions Judge and in such circumstances it will not be a sound exercise of discretion to set aside the order passed by the High Court and restore that of the learned Sessions Judge. 9. Shri Manoj Goel, learned counsel for the appellant, has, on the other hand, submitted that the name of Kapil Dev Singh was mentioned in the FIR and a specific role was attributed to him. In his statement in Court the first informant Rajendra Singh had corroborated the version given in the FIR and had not only mentioned about the presence of Kapil Dev Singh at the scene of commission of the crime but had assigned specific role to him. He has also submitted that having regard to the background of the case, viz., the earlier tripple murder case in which Nigam Singh was the first informant and the main eye-witness, the accused had a strong motive to commit his murder. Learned counsel has thus submitted that the ingredients of Section 319 Cr.P.C. were fully satisfied and the learned Sessions Judge had rightly exercised the power and had summoned the accused. Learned counsel has thus submitted that the ingredients of Section 319 Cr.P.C. were fully satisfied and the learned Sessions Judge had rightly exercised the power and had summoned the accused. Shri Goel has also submitted that in the present case, the learned Sessions Judge while acquitting the co-accused Daya Singh in the trial which concluded much later has referred to the impugned order of the High Court dated 24.4.2006 at several places in the judgment and has observed that fifty per cent of the prosecution case has already been disbelieved by the High Court. Learned counsel has also made a statement that the first informant Rajendra Singh has filed Criminal Revision No.1828 of 2007 (Rajendra Singh v. Daya Singh) challenging the acquittal of Daya Singh which has been admitted by the High Court on 11.7.2007 and is pending for hearing. 10. Having considered the submissions made by learned counsel for the parties, we are of the opinion that the statements of the witnesses under Section 161 Cr.P.C. being wholly inadmissible in evidence could not at all be taken into consideration. The High Court relied upon wholly inadmissible evidence to set aside the order passed by the learned Sessions Judge. That apart, no finding on a plea of alibi can be recorded by the High Court for the first time in a petition under Section 482 Cr.P.C. As mentioned above, the burden to prove the plea of alibi lay upon the accused which he could do by leading evidence in the trial and not by filing some affidavits or statements purported to have been recorded under Section 161 Cr.P.C. The whole procedure adopted by the High Court is clearly illegal and cannot be sustained. The other argument based upon the acquittal of co-accused Daya Singh has also no merits. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 and it was held as under in para 9 of the report : "9. The question as to whether an order passed under Section 319 Cr.P.C. would cease to be operative if the trial of the co-accused has been concluded, has been considered in Shashikant Singh v. Tarkeshwar Singh (2002) 5 SCC 738 and it was held as under in para 9 of the report : "9. The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the court may proceed against him for the offence which he appears to have committed. At the stage, the court would consider that such a person could be tried together with the accused who is already before the Court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses re-heard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the Court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination in chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319(4). The words 'could be tried together with the accused' in Section 319(1), appear to be only directory. 'Could be' cannot under these circumstances be held to be 'must be'. The provision cannot be interpreted to mean that since the trial in respect of a person who was before the Court has concluded with the result that the newly added person cannot be tried together with the accused who was before the Court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the Court on the basis of evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the Court." 11. Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by learned Sessions Judge on 26.5.2005 as infructuous. 12. Therefore the mere fact that trial of co-accused Daya Singh has concluded cannot have the effect of nullifying or making the order passed by learned Sessions Judge on 26.5.2005 as infructuous. 12. Further in the case of Naresh Pal Singh (supra) the Apex Court remitted the matter for reconsideration of the bail by the High Court where earlier the High Court had accepted the plea of the accused Raj Karan that he was on election duty at the relevant point of time when the incident had taken place. 13. Lastly in the case of Ram Kumar Agrahari (supra) the learned Single Judge of this Court by a detailed order declined to accept the plea of alibi which according to the learned Single Judge was a matter of probe and could be raised and considered at the stage of trial only. Thus the plea of alibi also cannot be accepted at this stage. It would be subject to proof upon the evidence being led in the trial. Further the factor that the co-accused Rajesh Sharma @ Guddu Pandit is still absconding and has not surrendered despite more than 18 months having passed also goes against the applicant. 14. In view of the discussions made above, I do not find any good ground for grant of bail. Application is accordingly rejected.