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2020 DIGILAW 1042 (ALL)

Moti v. State of U. P.

2020-07-28

SAMIT GOPAL

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JUDGMENT : SAMIT GOPAL, J. 1. Heard Sri. Vivek Kumar Singh, learned counsel for the applicant, Sri. Anjani Kumar Raghuvanshi, learned counsel for the first informant and Sri. Manu Raj Singh, learned A.G.A. for the State and perused the material on record. 2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Moti, seeking enlargement on bail during trial in connection with Case Crime No. 375 of 2019, under Sections 147, 148, 149, 307, 302 and 506 I.P.C. registered at Police Station Modinagar, District Ghaziabad. 3. The prosecution case as unfolded in the First Information Report lodged on 17.04.2019 at about 21:54 hrs at P.S. Modinagar, District Ghaziabad by Vikas son of Bijendra Singh for an incident which took place on 17.04.2019 at about 5.00 p.m. is that labours were sowing the crop of sugar-cane his field and when he was returning from his field in the evening then at about 5.00 p.m. he saw the accused persons namely Akshay and Sunny both sons of Jitendra, Ankit and Moti both sons of Satbir and Bhanu entering in the house of Vicky Tyagi and then he heard the sound of firing from inside the house to which he entered in the house of Vicky Tyagi and saw all the accused person brandishing their weapons, threatening of dire consequences and running away from there. He saw his brother-in-law, Dipendra @ Dippan having received several gun shot injuries and Pratham who was inside the house has also received firearm injury in his leg. The first informant is then said to have taken Dipendra @ Dippan and Pratham to Jeevan Hospital for their medical aid wherein Dipendra @ Dippan was declared dead. It is stated that the accused persons are persons of criminal intent and bad nature and they collectively fired indiscriminately upon Dipendra @ Dippan and murdered him. It is further stated that Ruby and Vinod and various other persons have seen the incident. It is then stated that apart from the named accused persons other persons may also have joined them in the said assault. He then states that he has come to the police station from the hospital for getting the FIR registered. The said application for getting the FIR registered is scribed by one Praveen son of Madan Singh. 4. It is then stated that apart from the named accused persons other persons may also have joined them in the said assault. He then states that he has come to the police station from the hospital for getting the FIR registered. The said application for getting the FIR registered is scribed by one Praveen son of Madan Singh. 4. Dipendra @ Dippan died and the doctor conducting the postmortem examination opined that the death is as a result of shock and haemorrhage due to ante mortem gun shot injury. 5. Learned counsel for the applicant argued that the present case is a cross case. He has drawn the attention of the Court to Annexure-6 of the affidavit in support of the bail application which is the FIR of Case Crime No. 0511 of 2019, under Sections 147, 148, 149, 307, 504, 506 I.P.C. registered at P.S. Modinagar, District Ghaziabad on 26.05.2019 at about 23:54 hrs for an incident which took place from 15.04.2019 to 17.04.2019 at 17:00 hrs (5.00 p.m.) by Smt. Nisha wife of Jitendra against Vikas, Vicky Tyagi, Sappu Gujar, Pratham and 03 unknown persons. The said FIR has been registered on the basis of an application dated 06.05.2019 moved under Section 156 (3) Cr.P.C. in the Court of the Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad which was numbered as Application No. 338/ACJM-5 of 2019 (Smt. Nisha vs. Vikas and Others). He argued that from the side of the applicant in the cross case Ankit and Akshay received injuries. He has drawn the attention of the Court to paragraph 13 of the affidavit and argued that Ankit received firearm injury on his leg. The said injury has been placed from Annexure-7 to the affidavit in which the doctor noted that the said gun shot injury has an exit also. Further Annexure 7 and 8 to the affidavit are the medical examination report and the further documents of treatment including the discharge summary of Akshay and learned counsel has argued that initially Akshay was taken to CHC, Ghaziabad where he was medically examined on 17.04.2019 at 6:10 a.m. from there was referred to surgeon for management of his injury. A copy of the medical examination report and reference slip is at page 62 of the paper-book. The injuries as found by the doctor are as follows:- (1) 1 cm x 1 cm wound over the Rt. A copy of the medical examination report and reference slip is at page 62 of the paper-book. The injuries as found by the doctor are as follows:- (1) 1 cm x 1 cm wound over the Rt. side of Abdomen 3 cm above from umbilicus. Around wound burning present. Tatooing not present. (2) 1 cm x 1 cm wound over Rt. side Abdomen 3 cm below from umbilicus. Around wound burning present. Tatooing not present. The opinion of the said doctor was “Both injury” Gun shot. 6. Subsequently, he was taken to District Combined Hospital, Ghaziabad from where he was after giving treatment referred to higher centre/Guru Teg Bahadur Hospital, New Delhi for management. The said reference slip is at page-66 of the paper-book. In pursuance thereof, Akshay was admitted in GTB, Hospital, New Delhi on 27.04.2019 and continued to be under treatment there. In between Akshay was admitted to Yashoda Super-speciality Hospital, Ghazaiabad on 17.04.2019 where he was operated upon for exploring and removal of bullet from his sacrum which was done on 21.04.2019. The relevant documents of treatment at Yashoda Hospital & Research Centre are annexed from page 70-76 of the paper-book. From the documents pertaining to the treatment of Akshay at GTB, Hospital, New Delhi annexed at page 67, 68, 78 and 79 of the paper-book, it is argued that injuries as received by Akshay were grievous in nature for which he struggled a lot and it was a matter of luck that he survived and his medical examination which started from CHC, Ghaziabad continued up to AIIMS, New Delhi. It is argued that in the cross case the police initially submitted a final report which has been rejected by the court concerned and the matter has been sent for further investigation which is still continuing. 7. Learned counsel for the applicant argued that the injuries as received by Ankit and Akshay are firearm injuries which cannot be self-inflicted. It is further argued that the prosecution has concealed the factum regarding the injuries as received by Ankit and Akshay and is totally silent about the same which goes to show that the prosecution version of the occurrence is doubtful and the prosecution has suppressed the genesis and the origin of the occurrence and has not come out with clean hands. It is further argued that the falsity of the case of the prosecution as per the FIR itself becomes under doubt from the fact that the first informant states that all the accused persons who were stated to be five in number including Akshay and Ankit the injured persons from the side of the accused left the place of occurrence brandishing their weapons, extending threats to life and they ran away. It is further argued that nature of injuries received by Akshay it was not possible for him to run away from the place of occurrence and the said injuries and his receiving injury could not have got unnoticed by the first informant. Learned counsel then places reliance upon the following judgments:- 1. Lakshmi Singh and Others vs. State of Bihar, (1976) 4 SCC 394 2. Bashishth Singh and Another vs. State of Bihar, (2002) 10 SCC 384 3. Bhagwan Sahai and Another vs. State of Rajasthan, (2016) 13 SCC 171 8. In the case of Lakshmi Singh (supra) while placing reliance upon the case of State of Gujarat vs. Bai Fatima, (1975) 2 SCC 7 , the Apex Court held that in a situation when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: “(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all.” 9. It was held in the case of Lakshmi Singh (supra) in paragraph 12:- “It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.” 10. Further, while relying upon the case of Bashishth Singh (supra), learned counsel for the applicant argued that the Apex Court has granted bail to the accused persons in the said case on the ground that a counter case was built on the strength of the First Information Report lodged by one of the accused and had granted bail to them. 11. While, relying on the case of Bhagwan Sahai (supra), learned counsel for the applicant argued that even in the said case the judgment of Lakshmi Singh and Others vs. State of Bihar has been referred and relied upon and the information non-explanation of the injuries on the side of accused by the prosecution has been considered by the Apex Court and an adverse inference has been drawn against the prosecution for not offering any explanation much less a plausible one. 12. Learned counsel has then placed before the Court an order dated 30.09.2019 passed by a co-ordinate Bench of this Court in Criminal Misc. Bail Application No. 39170 of 2019 (Akshay vs. State U.P.) and has stated that co-accused, Akshay has been granted bail by the said order. Further, learned counsel has placed before this Court the order dated 28.02.2020 passed by the Apex Court in Special Leave to Appeal (Criminal) No. 9957 of 2019 (Vikas Kumar vs. Akshay and Another) and has stated that the said Special Leave to Appeal was preferred against the order dated 30.09.2019 granting bail to Akshay and the same has been dismissed by the said order. It is argued that there is a recovery shown against the applicant for which Case Crime No. 447 of 2019, under Section 25/27 Arms Act has been registered but it is alleged that the said recovery was a planted recovery by the police on 10.05.2019 and there is no forensic report that the recovered weapon was used in the commission of the present offence. Paragraph 24 and 30 of the affidavit have been placed for the said argument. Paragraph 24 and 30 of the affidavit have been placed for the said argument. It is further stated that charge-sheet in the present case has been submitted on 20.04.2019. In the last, while placing reliance on paragraph 24 of the affidavit again learned counsel has stated that the applicant has no criminal antecedents and the case under the Arms Act as of now is against the applicant as the sole case which relates to the alleged recovery of weapon said to have been used in the present case. It is stated that the applicant is in jail since 01.05.2019. 13. Learned counsel for the first informant opposed the prayer for bail and argued that filing of the application under Section 156 (3) Cr.P.C. by Smt. Nisha was an afterthought just in order to create a defence in the present matter. It is argued that the Apex Court, while dismissing the Special Leave to Appeal has categorically clarified that the same is being refused to be entertained in the peculiar circumstances of the said case. It is thus argued that the applicant is not entitled to the claim of parity with co-accused. Further it is argued that the present case is a case in which one person received injury and died and there is one injured and the injuries received by Ankit and Akshay are self-inflicted injuries. 14. Learned A.G.A. also opposed the prayer for bail but could not dispute the aforesaid arguments of the learned counsel for the applicant. Even the fact that the applicant has no criminal history and the other case under the Arms Act is after the present matter could not be disputed. 15. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. 16. 16. Let the applicant, Moti, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. (ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C. may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 17. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 18. The bail application is allowed. 19. 17. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 18. The bail application is allowed. 19. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad. 20. The computer generated copy of such order shall be self attested by the counsel of the party concerned. 21. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.