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2017 DIGILAW 906 (JHR)

Vikash Tiwary v. State of Jharkhand

2017-06-08

RONGON MUKHOPADHYAY

body2017
ORDER : Heard Mr. K.N. Choubey, learned senior counsel appearing for the petitioner and Mr. Kaushik Sarkhel, learned A.P.P. for the State. 2. The petitioner is an accused in connection with Barkagaon P.S. Case No. 193 of 2014 registered for the offences punishable under Sections 302/120-B/34 of the IPC and Section 27 of the Arms Act. 3. The FIR was instituted on 16.12.2014 in which it was alleged that on 15.12.2014 when the informant was returning from Khelari after attending the birthday celebration of the son of Md. Firoz along with Lakhan Sao, Prakash Thakur and Suresh Rana besides bodyguard of Lakhan Sao namely, Mithilesh Tiwary at 11:30 p.m., a red colour Sumo Victa vehicle was seemed parked. It is alleged that as soon as they reached near the vehicle, indiscriminate firing was started by the 5 miscreants upon them who were present at the spot which resulted in the bodyguard Mithilesh Tiwary suffering injury which led to his death. The informant has alleged that all the 5 miscreants have been seen by the informant in the light of the vehicle and identified two of them which includes the petitioner as well as Guddu Yadav @ Prakash Yaday. Based on the aforesaid allegations, Barkagaon P.S. Case No. 193 of 2014 was instituted. 4. It has been stated by the learned senior counsel for the petitioner that the allegation levelled against the petitioner are general and omnibus in nature. It has been stated that the incident has taken place at a lonely place in the dark night and therefore, the identification of the petitioner becomes doubtful. Learned senior counsel further submits that after investigation charge-sheet has only been submitted against the petitioner whereas one Guddu Yadav who was having similar allegations, no progress has been made by the I.O and his fate has been kept in a limbo. Learned senior counsel goes on to add that investigation itself is perfunctory and in fact the police has not come out with the unblemished truth and only the petitioner has been singled out while being charge-sheeted by the police. It has also been submitted that Lakhan Sao and others were returning after attending the birth day ceremony of' son of one Md. Firoz Khan, but in spite of the same, the Investigating Officer has never examined Firoz Khan. It has also been submitted that Lakhan Sao and others were returning after attending the birth day ceremony of' son of one Md. Firoz Khan, but in spite of the same, the Investigating Officer has never examined Firoz Khan. It has further been submitted that although the informant has alleged of receiving firearm injury on the arm, but there is no injury report to substantiate such fact. It has also been stated that the allegations suggest that indiscriminate firing was made on 5 persons, but practically only the bodyguard of Lakhan Sao received injury which led to his death. Submissions have been advanced that although attempt is said to have been made by the accused persons on account of the business rivalry with Lakhan Sao, but no injury was sustained by Lakhan Sao. He further submits that in fact Lakhan Sao is himself a man of questionable character as several criminal cases are pending against him. He further submits that although the firing was made from the left side, but the post-mortem report suggests that the firearm injuries which was received by the bodyguard was on the right side. He also submitted that there is discrepancy in the statement recorded in paragraphs 17 and 19 of the case diary, inasmuch as, the informant has stated that the miscreants were standing near the Sumo Victa which is red in colour, but Lakhan Sao has stated about a white Scorpio vehicle. It has further been submitted that in the night the occurrence had taken place it was a dark night and the identification of the petitioner is well-nigh impossible. Further submission has been advanced that the personal rivalry which seems to be in existence between Lakhan Sao and the petitioner as per the version of some of the witness are vague. Learned senior counsel has referred to paragraphs 7 and 8 of the case diary which contains the statement of independent witnesses who have not stated about the presence of any vehicle at the time of the incident, rather Ugan Sahu whose statement was recorded in paragraph 8 of the case diary has stated that 3 motorcycles were present. It has also been submitted by the learned senior counsel that the weapon which was carried by Mithilesh Tiwary the self styled body guard was an unlicensed weapon. It has also been submitted by the learned senior counsel that the weapon which was carried by Mithilesh Tiwary the self styled body guard was an unlicensed weapon. Learned senior counsel further submits that the petitioner is in custody since 22.8.2015 and there being several discrepancies in the statement of the witnesses apart from the factual aspect which have been brought forward, the petitioner deserves being released on bail. 5. Mr. Kaushik Sarkhel, learrned counsel has opposed the prayer of the petitioner and has stated that the investigation has categorically revealed about the presence of the petitioner for which he has referred to paragraphs 17 and 19 of the case diary. Learned A.P.P. has also submitted that there appears rivalry between the Lakhan Sao and the petitioner with respect to coal business which fact has been substantiated by Prakash Thakur which has been recorded in paragraph 18 of the case diary. Apart from the statement made by the witnesses, learned A.P.P submits that the petitioner has 14 criminal cases pending against him and an order of preventive detention has been passed against him. Learned A.P.P. thus submits that the circumstances which has come up in course of investigation coupled with the direct nature of allegations, levelled against the petitioner, the present application is liable to be dismissed. 6. With respect to the submission made by the learned A.P.P. about the criminal antecedent of the petitioner, Mr. Choubey, learned senior counsel for the petitioner submitted that in most of the cases the petitioner has been granted bail and so far as the order of preventive detention is concerned, the said order has already been set aside by this Court. 7. After considering the rival submissions, it appears that in the FIR, the petitioner is squarely named as a person who has actively taken part in indiscriminate filing on the vehicle on which Lakhan Sao and the deceased were travelling. The identification of the petitioner is palpable in view of the statement of Lakhan Sao and Suresh Rana recorded in paragraphs 17 and 19 of the case diary. The identification of the petitioner is palpable in view of the statement of Lakhan Sao and Suresh Rana recorded in paragraphs 17 and 19 of the case diary. Although, learned senior counsel for the petitioner has referred to several instances to suggest that the petitioner has been falsely implicated, but the narration made in the FIR has been sufficiently corroborated by the statement of the witnesses recorded under Section 161 of Cr PC especially those which are in paragraphs 17 and 19 of the case diary. The business rivalry which is in existence between the petitioner and the Lakhan Sao has also been fortified by the statement of Prakash Thakur as recorded in paragraph 18 of the case diary. There appears to be some discrepancy, but the same are not of such nature which would dilute the case against the petitioner. 8. In view of the specific nature of allegation of indiscriminate firing upon the vehicle of Lakhan Sao leading to death of Mithilesh Tiwary, the bodyguard of the vehicle, I am not inclined to grant bail to the petitioner which is accordingly, rejected. Bail rejected.