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Allahabad High Court · body

2016 DIGILAW 1269 (ALL)

Monty v. State of U. P.

2016-04-06

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Karuna Nand Bajpayee, J. This application has been filed seeking the release of the applicant on bail in Case Crime No.1040 of 2015 u/s 302 ,34 IPC P.S. Sector 39 Noida District Gautam Budh Nagar. 2. Heard learned counsel for the applicant and learned A.G.A. Perused the record. 3. The central facts of the prosecution version are that the first informant lived in a flat situated in NOIDA along with two other persons namely Sandesh (deceased) and Madhur Dayavashu. On the day of incident there were two guests also in the house namely Pratyush Sharma and Prem Nath. At about 3.30 P.M. the call bell rang and in order to attend the same Sandesh (deceased) went to open up the door. Just at that time the report of firing was heard, the deceased cried aloud and said ".........Aman, do not kill me." On hearing this, the first informant rushed towards the spot and saw co-accused Aman carrying an axe and the applicant carrying a country made pistol in his hand. Repeated blows of axe were delivered by co-accused Aman on the deceased while the applicant used his pistol and shot the deceased down. Co-accused Aman is a student in Amity University and it is said that about a month back when the first informant and the deceased and co-accused Aman and another friend Madhur were enjoying a party, the first informant was speaking Telgu with his other friends and was laughing with them. The co-accused Aman misunderstood the situation and thought that a fun of him was being made by these people which included the deceased Sandesh. He reacted sharply at that time and as all these people had taken some mild drinks also, the co-accused Aman at that time gave the threat telling these people that he is a "Jat" and he will shoot them down. Somehow he was pacified and he made to go. It was with this background of intense heartburn and the feelings of slight and humiliation in which on the day of occurrence co-accused Aman along with the applicant, who was his friend, came up to first informant's residence and perpetrated this audacious crime. After the incident the deceased was got down and somehow was rushed to hospital but could not survive and succumbed to the injuries. He was declared dead by the doctors. 4. After the incident the deceased was got down and somehow was rushed to hospital but could not survive and succumbed to the injuries. He was declared dead by the doctors. 4. Submission of the counsel for the applicant is that in the FIR though eye witness account was given by the first informant but the applicant was not named there as accused. Subsequently when the first informant was examined by the police, applicant was nominated as one of the accused. It has been submitted that if the applicant was previously known to the first informant there is no convincing explanation as to why his name was got omitted in the FIR. According to the counsel this anomaly creates doubt about the truthfulness of the allegation against the applicant. Further submission is that another witness Prerna Thapa has also not nominated the applicant as accused. Yet another witness Pratyush Sharma has also not nominated the applicant as an accused and has only nominated accused Aman by name. Therefore, applicant should be released on bail. 5. Learned A.G.A. has opposed the prayer for bail and has submitted that the incident is said to have taken place on 17.10.2015 at about 3.30 p.m. and the FIR of the case was lodged at 4.30 P.M. on the same day. The first informant was also examined on the same day soon after the FIR. It has been submitted that when the first informant was examined by the Investigating Officer he has very well nominated the applicant as accused along with other co-accused. It has been stated that the incident of murder took place in an unexpectedly sudden and in a most gruesome manner in which several incised wounds and also the gun shot wounds were caused to the deceased. The first informant and his friend were in state of extreme nervousness and shock as the incident had taken place in his own residence. In the given circumstances if the name of the applicant got omitted, there is no great surprise. It has been submitted that the examination of the first informant by the police is not after the long gap of time but on the same day soon after occurrence in which he has given the complete details of the incident and the participation of applicant in the crime was narrated. It has been submitted that the examination of the first informant by the police is not after the long gap of time but on the same day soon after occurrence in which he has given the complete details of the incident and the participation of applicant in the crime was narrated. It was told that the applicant and other co-accused together have committed the merciless murder of the deceased by using an axe and the country made pistol which stands fully corroborated by post mortem examination of the deceased also. 6. Learned AGA has also drawn the attention of the court to the statement of another crucially important witness Madhur Daya Basu who was also examined on the same day and according to the version given out by him he had also seen the applicant with the country made pistol with the co-accused was carrying an axe coming down from the place of incident immediately after incident and who had also told him that lesson has been taught to the deceased for making fun of them. Seeing these accused thus coming out and after hearing what they said this witness rushed up the stairs and saw the deceased lying on the roof in pool of blood who was declared dead in the hospital later on. It was also pointed out that so far as Prerana Thapa witness is concerned she locked herself inside the room on hearing the sound of the fire and has not given an eye witness account of the incident itself, and therefore not much turns on her statement. It has been submitted that if another witness Pratyush Sharma has not nominated the applicant as accused, it is also not any adverse circumstance against the prosecution because it is quite possible that he might not have known the applicant and might have been acquainted only with co-accused Aman. But the version given by Pratyush Sharma clearly establishes participation of two assailants, one co-accused Aman and the other who was his companion carrying his pistol. This witness has given a truthful version of the incident and the participation of two accused persons has also been confirmed by the presence of the two type of the injuries on the body of the deceased, one caused by fire arm and another by sharp edged axe. This witness has given a truthful version of the incident and the participation of two accused persons has also been confirmed by the presence of the two type of the injuries on the body of the deceased, one caused by fire arm and another by sharp edged axe. Further submission is that on a trifling issue this merciless murder has been committed in cold blood by the applicant and other co-accused and the participation of both of them is sufficiently corroborated not only by medical evidence but also by the version given by the first informant and another witness Mathur Daya Basu on the same day soon after the occurrence. In such circumstance there is hardly any scope of embellishment or false implication as the statement of the witnesses were recorded very promptly on the same day soon after the occurrence. It was pointed out that the applicant was not a student and was only a friend of co-accused Aman and therefore, it was not necessary that all the witnesses might have been previously acquainted with the applicant. It has been submitted that the first informant or other witnesses were not any professional witnesses or very mature persons and were just young students, therefore, if they had gone in a state of extreme nervousness after witnessing such a macabre incident, the omission of the applicant's name in the FIR will not cast any deleterious effect on the prosecution case keeping in view the totality of the facts and circumstances of the case. 7. Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the applicant has not made out a case for bail. Therefore, the prayer for bail of the applicant is rejected. 8. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.