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2021 DIGILAW 551 (ALL)

Vishal Kharwar @ Veetu v. State of U. P.

2021-06-15

VIKAS KUNVAR SRIVASTAV

body2021
JUDGMENT : Vikas Kunvar Srivastav, J. 1. The case is called out through video conferencing. 2. Learned counsel for the bail-applicant Ms. Madhulika Yadav, Advocate and learned A.G.A. for the State Sri Suresh Kumar Tiwari, Advocate are connected through video conferencing in virtual hearing of the case. 3. The present bail-application is moved on behalf of accused-applicant-Vishal Kharwar @ Veetu, who is involved in Case Crime No.348 of 2020, under Sections 307/34 and 302 of I.P.C., registered at Police Station Chanda, District Sultanpur. 4. The occasion of present bail-application has arisen on rejection of bail-plea of the accused-applicant by learned Sessions Judge, Sultanpur vide order dated 17.12.2020. 5. Reading over the first information report lodged on 09.09.2020, learned counsel for the bail-applicant submits the prosecution case, that on 09.09.2020 at about 07:40 P.M., complainant's uncle namely Anoop Shukla went to the shop of one Harishchandra Kharwar for buying something, where a dispute occurred between her uncle and the said Harishchandra Kharwar. At that time, Harishchandra Kharwar alongwith his three sons namely Veeru Kharwar, Sheru Kharwar and Prince Kharwar attacked on her uncle and inflicted blows on neck, stomach and shoulders with a sharp edged weapon. On listening the hue and cry, father of the complainant namely Amit Kumar Shukla reached at the spot, where all the aforesaid four accused persons attacked on him also with the same weapon. Thereafter, all the accused fled away from the spot and complainant alongwith her family members when reached near the victims, she found that her uncle Anoop Shukla was killed by them and her father Amit Shukla was severely injured. 6. Learned counsel for the bail-applicant argued for grant of bail to the present accused-applicant on the ground that his role is assigned in the first information report and the statement of witnesses is only of catching hold to the deceased. Secondly, the eye witnesses are falsely posed by the Investigating Officer as eye witnesses, otherwise their version, itself shows that they reached on the spot of incident only after the commission of the alleged offence. Learned counsel herself distinguished the role of present accused-applicant with that of the co-accused, 'Harishchandra Kharwar', his father on the basis that the witnesses stated him only who was armed with the knife as well as inflicted blows of the same on victims. Learned counsel herself distinguished the role of present accused-applicant with that of the co-accused, 'Harishchandra Kharwar', his father on the basis that the witnesses stated him only who was armed with the knife as well as inflicted blows of the same on victims. Lastly, she argued about the enmity grown from the Panchayat elections, wherein the family of the accused-applicant did not support the complainant's side, in vengeance of which, the entire family is falsely implicated by the informant. 7. Learned A.G.A. for the State drew the attention towards the first information report and the statement of eye witnesses particularly 'Anurag Shukla' and 'Chandra Prakash Shukla'. He submitted that the presence and attendance of the said witnesses on the spot of incident at the relevant time when the offence was being committed is established by their statements. Moreover, the witnesses have stated that all the accused including the present accused-applicant were beating and dragging the deceased and his brother (injured in the incident), were inflicting blows of sharp edged weapon like knife. Other witnesses have also stated the knife in the hands of Harishchandra Kharwar specifically. The post mortem report, made annexure no.4 to the bail-application, contains the anti mortem injury reported by the doctor, who did autopsy on the dead body of Anoop Shukla, one of the victims. The injuries are reported as under:- "2- Oral bleed 3-4x0.5 x cavity deep incised wound on rt upper chest 1 cm below re lap clavicle. 4-3x0.5 cm x cavity deep incised wound on rt chest 8 cm Below rt nupple. 5- 5x0.5 muscles deep incised wound below left chin. 6-1x0.5 cm cavity deep incised wound below left abdomen. 6 cm at ...............intestine come out. 7- 1x0.5 cm x skin deep incised wound on left shoulder." 8. In the above context of antimortem injures found on the body of deceased, learned A.G.A. submitted that they directly connect the manner of commission of offence as stated by the witnesses, by the accused-applicant and his companions because there are multiple incised wound on the body of the deceased. Secondly, the presence and attendance of 'Amit Shukla', the other victim of the incident, who is injured, is also prima facie proved by medical examination report. The report is as under:- "Stab Injury (Rope of neck) & left back (L) Side Hemi plegia dlt A/H/O assault c knife" 9. Secondly, the presence and attendance of 'Amit Shukla', the other victim of the incident, who is injured, is also prima facie proved by medical examination report. The report is as under:- "Stab Injury (Rope of neck) & left back (L) Side Hemi plegia dlt A/H/O assault c knife" 9. Learned A.G.A. further submitted that the injuries on the body of deceased-victim as well as the injured victim in themselves make it clear that not only the Harishchandra Kharwar, one of the co-accused but all the persons accused, named by the witnessed have caused them. 10. After hearing the rival contentions of the contesting parties to the case and perusal of materials on the record of the case, following facts are considered for the purpose of decision of applicant's prayer to release on bail. 11. It is noteworthy that all the accused have been arraigned under Sections 307/302 read with Section 34 of Indian Penal Code, 1860. The manner in which the eye witnesses of the incident dated 09.09.2020 have described the presence/participation of all the accused in the incident and their involvement in the co-operation with each other in the commission of the offence, their common intention to commit murder is prima facie obvious from their act and conduct. The incident is day light incident and witnesses are neighbouring, naturally residing in the locality and knowing both, the complainant and the accused persons very well. The presence and identification of the accused is probable and therefore reliable at this stage also, prima facie. 12. The contention of learned counsel for the bail-applicant that the incriminating article knife was stated by the eye witnesses in the hand of co-accused Harishchandra Kharwar only and rest of the co-accused including the present accused-applicant were assigned role of catching hold of the victim (deceased) Anoop Kumar Shukla, much vehemence is put over this in claiming the present accused-applicant's innocence. 13. 13. It is argued that the role of the present accused-applicant is merely to caught and hold the deceased to detain him during the incident under the furtherance of common intention enshrined in Section 34 of the Indian Penal Code, 1860, his act was deemed to have been committed by all the accused in furtherance of common intention to murder the victim of the incidence (deceased) and he shall be deemed to be a joint participant in crime as well as equally liable for the murder. The role of present accused can not be separated for the purpose of prima facie ascertaining his innocence from the cumulative effect of the acts of all the accused, the killing of the deceased. 14. In Kirpal and Bhopal Vs. State of Uttar Pradesh reported in AIR 1954 SC 706 , para 6 explains the liability of co-accused in like offence. The relevant portion of para 6 is quoted hereunder :- "The question, however, remains as to which of these three appellants are guilty and what offence has been committed by each. The learned Sessions Judge while holding all the three appellants responsible for causing the death of Jiraj was of the opinion that they could be guilty only under Section 304 IPC taken with Section 34 IPC on the ground that there is no evidence of any preconcerted or predetermined plan to kill the deceased Jiraj and that the blows were inflicted by the appellants in the course of a sudden fight in the passion without having taken undue advantage or acted in a cruel or unusual manner. The learned Judges of the High Court quite rightly pointed out that a preconcert in the sense of a distinct previous plan is not necessary to proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts............." 15. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts............." 15. If the present accused-applicant had not allegedly stopped with other co-accused (his brothers) by catching hold the deceased, he could have saved himself from the stabbing of the knife by the co-accused Harishchandra Kharwar or could have escaped from the scene of the incident, could have saved his life. But this could not happen because of the present accused having caught and stopped the deceased, consequently he was murdered. 16. In situation like that of the present case, when some people, in a dispute with another person start beating him, even when one or more of them become so violent and strike him with hand, kicks and fist or strangulate him or do some fatal act or wield lethal weapon in such a way to ensure his death and those who are still involved in the incident throughout knowing very well the probable consequences of the acts being done by their companions (co-accused), and caught hold the victim of the incident untill the other participants in crime ensures the victim's death or about to death by reason of the injury sustained in the course of evidences, the role and the liability of such a person having caught & hold the victim cannot be different from the intention of the person committing murder and neither should his liability separable. 17. On the basis of aforesaid discussions, the facts and circumstances and perusal of the materials on record, the entirety of facts as emerging from the statements of witness annexed with the affidavit in support of the bail-application, I find the prima facie case of prosecution established against the present accused-applicant. Further the manner, incident was committed and the nature of the accused persons apparent from the evidences, all are sufficient together to show, the accused-applicant is capable of tampering the evidences and to affect the witness adversely. 18. Without making comment as to the merit of the case, I find no force in the submission of learned counsel for the bail-applicant and the bail-application is rejected at this stage. 19. 18. Without making comment as to the merit of the case, I find no force in the submission of learned counsel for the bail-applicant and the bail-application is rejected at this stage. 19. Learned court below is directed to expeditiously proceed with the trial of the case as soon as practicably possible, within one year from the date, certified copy of the order is placed before it. In deciding the case on merit, the trial court need not to be swayed away with any observation made by this Court in the order. 20. The present accused-applicant may have right to avail remedy of bail afresh after expiry of aforesaid period.