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2022 DIGILAW 1384 (ALL)

Pawan Kumar Verma v. State of U. P.

2022-08-31

SUBHASH VIDYARTHI

body2022
JUDGMENT : 1. Heard Sri Gopal Swaroop Chaturvedi, Senior Advocate, assisted by Sri Shishir Tandon Advocate, the learned counsel for the applicant, Sri Dinesh Kumar Srivastava Advocate, the learned AGA for the State, Sri Rajeev Sawhney Advocate, the learned counsel for the informant and perused the record. 2. The instant application has been filed by the applicant seeking his release on bail in Case Crime No.41 of 2021, under Sections 307, 436, 325, I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Pheel Khana, District Kanpur Nagar. 3. The aforesaid case has been registered on the basis of an F.I.R. lodged by the informant Ashish Kumar Jain on 21.07.2021 at 14.44 hours against the applicant Pawan Kumar Verma and his son Anand Verma, alleging that both the accused persons had assaulted the informant's nephews Tarun Jain and Rahul Jain on the same day at 10.30 a.m. with sharp edged weapons with intention to kill them and the accused persons also tried to put their house on fire. The FIR further states that the nephews of the informant were admitted to a hospital by the police. 4. The injury report of Tarun Jain annexed with the affidavit filed in support of the bail application mentions six incised wounds and an abrasion. Five injuries were kept under observation and the injured was referred for C.T. Examination. Injury no.4 was found to have been caused with a hard & blunt object, whereas the other injuries were reported to have been caused by a sharp object. Injury no.6 was an incised would of size 0.3 X 0.3 X 1.0 C.M. in the chest cavity. 5. The injury report of Rahul Jain mentions a lacerated wound on left side of his forehead, a contused swelling, three incised wounds and an abrasion and the doctor has opined that injuries nos.1, 3, 4, & 5 were caused by some sharp object and the injuries nos.2 & 6 were simple in nature, caused by some hard and blunt object. 6. Supplementary medical examination report of the injured Tarun Jain issued by Madhuraj Hospital on 21.07.2021 mentions that he had undergone a surgical operation on 17.07.2021 and the doctor reported that injuries nos.1 & 2 were dangerous to life. 7. 6. Supplementary medical examination report of the injured Tarun Jain issued by Madhuraj Hospital on 21.07.2021 mentions that he had undergone a surgical operation on 17.07.2021 and the doctor reported that injuries nos.1 & 2 were dangerous to life. 7. In the affidavit filed in support of the bail application it has been stated that the applicant's son Anand Verma, who is the co-accused in the present case, has purchased a property from a relative of the informant; that Rahul Jain and Tarun Jain have filed Suit No.639 of 2016, in the court of Civil Judge (Senior Division), Kanpur Nagar for seeking a declaration that the sale deed executed in favour of the co-accused is null and void and they also sought a perpetual injunction. It has further stated in the affidavit that a reply has been filed in the aforesaid suit and the trial court has rejected the application for temporary injunction by means of an order dated 28.07.2021; that the aforesaid order dated 28.07.2021 was challenged before this Court by filing F.A.F.O. No. 3321 of 2021 and on 18.05.2018 this Court has passed an order admitting the appeal and directing the parties to maintain status-quo with regard to the suit property. 8. It has further been stated in the affidavit that the applicant was in possession of the property in question and being aggrieved against this, Tarun Jain and Rahul Jain and some other co-accused persons had attacked the applicant's son Anand Verma on 21.07.2021 at 9.30 a.m. when he was cleaning his shop; that hearing his hue and cry the applicant reached their and tried to save him upon which Tarun Jain and Rahul Jain and some other persons caused injuries to the applicant and his son Anand Verma; that the injuries of the applicant and his son were examined in the KPM Hospital, Kanpur Nagar on 21.07.2021 itself. 9. The injury report of the applicant's son Anand Verma states that he was examined on 21.07.2021 at 12.25 P.M. and multiple abrasions in an area of 13 cm. X 6 cm. on the left side of his chest; multiple abrasion in an area of 18 cm. X 10 cm. on the right side of the neck and shoulder of the applicant, a contusion of the size 6 cm. X 2 cm. X 6 cm. on the left side of his chest; multiple abrasion in an area of 18 cm. X 10 cm. on the right side of the neck and shoulder of the applicant, a contusion of the size 6 cm. X 2 cm. on the right side of his chest were found on his body and all the injuries suffered by the injured were found to be simple in nature. The applicant's son Anand Verma (co-accused) was examined in the same hospital on 21.07.2021 at 12.50 p.m. and a lacerated wound of size of 1.5 cm. X 4.3 cm. on the left side of parietal region, a lacerated wound of size 1.0 cm. X 0.5 cm. over the left ring figure was found on his body and all the injuries were found to be simple in nature. 10. The affidavit also contains a narration that when the applicant tried to lodge a first information report of the incident, the police did not accept his report and rather it arrested the applicant and his son on the date of the incident itself. On 24.09.2021, the applicant's daughter Vandana Verma has filed an application under section 156 (3) Cr.P.C. before the Metropolitan Magistrate, Court No. 10 Kanpur Nagar, which application is still pending. 11. It has been contended in the affidavit that since the applicant is already in possession of the property in question, he did not have any motive to committee the offence; that the applicant is aged about 65 years; that it has been alleged that the applicant and his son had assaulted the injured persons with a saw and screw driver, which are not regular weapons of assault and it indicates that the applicant and his son were not having any intention to cause the incident. 12. 12. In para-33 of the affidavit filed in support of the bail application, the applicant's criminal history of three cases has been disclosed - (i) in Case Crime No. 26 of 2015, under Sections 332, 333, 504, IPC, Police Station Moolganj, District Kanpur Nagar, the applicant has been granted bail by means of an order dated 24.02.2015, passed by the Metropolitan Magistrate, Court No. 5, Kanpur Nagar; (ii) in Case Crime No. 24C of 2004, under Sections 420, 427, 458, 506, IPC, Police Station Kotwali, District Kanpur Nagar, the applicant has been acquitted of the charges leveled against him, by means of judgment and order dated 24.01.2009, passed by the Metropolitan Magistrate, Court No. 4, Kanpur Nagar and (iii) in Case Crime No. 24 A of 2008, under Sections 307, 326 323, 504, 506, IPC, Police Station Moolganj, District Kanpur Nagar, the applicant has been granted bail by means of an order dated 17.06.2022, passed by the Additional Sessions Judge, Court No. 1, Kanpur Nagar. 13. It has been asserted in the affidavit that the applicant is innocent and he has been falsely implicated in the present and he is languishing in jail since 21.07.2021. The affidavit contains a categorical under taking that in case the applicant is granted bail, he will not abscond and he will abide by all the conditions imposed on him by this Court. 14. A copy of the recovery memo filed alongwith the affidavit filed in support of the bail application mentions that the applicant's son had confessed that he had made assault with a saw used to cut iron and plastic and the applicant is alleged to have confessed that he had assaulted with a screw driver which is normally used to break ice. Both of them are alleged to have stated that they had thrown away the weapons in an open space in front of their house and both the weapons were recovered on their pointing out. 15. Both of them are alleged to have stated that they had thrown away the weapons in an open space in front of their house and both the weapons were recovered on their pointing out. 15. The injured Rahul Jain has filed a counter affidavit stating that a civil dispute is going on between the parties regarding the house in question and as the applicant could not get possession of the property in dispute, he lodged an FIR dated 23.04.2016 against the seller Rajesh Jain and Brijesh Jain, which is registered as Case Crime No. 66 of 2016, under Sections 420, 427, 468, 471, 406, 504, 506, IPC, in Police Station Feelkhana, District Kanpur Nagar. The counter affidavit further alleges that as the applicant and his son could not take possession of the property in dispute, they attacked Rahul Jain and Tarun Jain with a screw driver and a saw, causing serious injury to both of them and they also set the shop of Rahul Jain and Tarun Jain on fire after pouring petrol on the goods of the shop. 16. It has further been stated in the counter affidavit that the footage of a C.C.T.V. Camera shows that the applicant and his son had poured petrol on the goods of the shop and set it on fire. Several photographs have been annexed with the counter affidavit and it has been contended that the same show the applicant and his son pouring petrol on the goods of the shop of the victim and putting the same on fire. Several photograph of the injured Tarun Jain have also been annexed with the counter affidavit. 17. The State has also filed a counter affidavit stating that in the statements of the injured Tarun Jain and Rahul Jain recorded under Section 161 Cr.P.C., they have supported the FIR version and that during investigation, statements of several witnesses have been recorded and all of them have supported the prosecution version. 18. On 12.05.2022, this Court had passed an order directing the learned AGA to produce the photographs taken from the C.C.T.V. Footage of the alleged and the State has filed a compliance affidavit annexing there with copies of the photographs, which have already been annexed alongwith the counter affidavit filed on behalf of the informant. 19. 18. On 12.05.2022, this Court had passed an order directing the learned AGA to produce the photographs taken from the C.C.T.V. Footage of the alleged and the State has filed a compliance affidavit annexing there with copies of the photographs, which have already been annexed alongwith the counter affidavit filed on behalf of the informant. 19. Sri Gopal Swaroop Chaturvedi, the learned Senior Advocate appearing for the applicant, has submitted that the FIR alleges that the applicant and his son had assaulted the nephews of the informant with sharp edged weapon but it has not been specified as to which weapon was used by the applicant and, therefore, the FIR allegations are vague. 20. Sri Chaturvedi next submitted that all the injuries suffered by the injured persons are simple in nature, except two injuries suffered by Tarun Jain in his chest region, which could be dangerous to life. He has further submitted that the applicant and his son have also suffered several injuries in the incident and their medico legal examination conducted on the same day in the same hospital promptly, at 12:25 and 12:50 p.m., indicates that no unnecessary time was lost in getting the medico legal examination of the applicant and his son conducted, so as to leave any probability to assume that the injuries could have been manufactured during the intervening period. 21. Sri Chaturvedi has also submitted that the applicant also tried to lodge an FIR of the incident, but the police acting hand in gloves with the family of the injured persons, he did not lodge their FIR and the applicant and his son both were taken into custody on 21.07.2021 and thereafter the applicant's daughter Vandana Verma has filed an application under section 156(3) Cr.P.C., which is still pending. 22. Sri Chaturvedi has further contended that although several witnesses, including both the injured persons and the informant have been examined by the police during investigation, none of them stated anything which may explain the injuries suffered by the applicant and his son, which indicates that the witnesses are hiding some relevant and material facts about the incident and they are not truthful witnesses and are not reliable. 23. 23. The learned Senior Counsel for the applicant has submitted that the present case arises out of a sudden quarrel and scuffle, in which the weapons allegedly used were a screw driver and a saw and no regular weapon of assault was used and also keeping in view of the facts that except the two injuries suffered by the injured Tarun Jain, both the nephews of the informant as well as the applicant and his son have suffered numerous injuries. 24. Refuting the aforesaid submissions Sri Rajeev Sawhney, the learned counsel for the informant has submitted that all the witnesses examined during the investigation have fully supported the prosecution case, and there are no inconsistencies in their statements. He has submitted that both the injured persons Rahul Jain and Tarun Jain have suffered seven injuries, each, and Tarun Jain had to remain admitted to a hospital for 28 days and he had to undergo a surgical operation. 25. Sri Sawhney has submitted that this is actually not a cross case, in this case the applicant and his son were the aggressors and they had assaulted the informant's nephews, causing serious injuries to them and thereafter an application under section 156(3) Cr.P.C. has been filed on 24.09.2021 i.e. after more than two months. He has referred to a photocopy of a report submitted by the police to the Metropolitan Magistrate, Kanpur Nagar, stating that no application in this regard has been submitted in the police station and on the strength of the aforesaid report he has submitted that the application under section 156(3) Cr.P.C. has been filed on false assertions and since its filing, it is not being pursued, which indicates that there is no force in the application. 26. The learned counsel for the informant has further submitted that several civil disputes are going on between the parties and the applicant has filed a FIR against the seller, alleging that they did not handover possession of the property in dispute to the applicant, which indicates that the applicant had a motive to commit the offense. He has submitted that a screw driver and a saw were used by the applicant and his son deliberately in order to give it a pretense of a sudden dispute. He has also submitted that the injuries shown on the body of the applicant and his son are manufactured injuries. 27. He has submitted that a screw driver and a saw were used by the applicant and his son deliberately in order to give it a pretense of a sudden dispute. He has also submitted that the injuries shown on the body of the applicant and his son are manufactured injuries. 27. The learned counsel for the informant has next submitted that in the present case the applicant and his son are the aggressors and even if the injured persons have caused some injuries to them while exercising their right of self defense, the case cannot be labeled as a cross case. 28. I have given a thoughtful consideration to the rival submissions made on behalf of the learned counsel for the parties. 29. The FIR lodged in the present case alleges that the applicant and his son had made the assault with some unspecified ''sharp edged weapon'. There is no allegation in the FIR or in the statements recorded under Section 161 Cr.P.C. that any hard and blunt object was used by the applicant and his son. However, Dr. D. K. Srivastava, Emergency Medical Hospital, KPN Hospital, has stated that the injury at Sl. no. 4 was found to have been caused by a hard and blunt, for which there is absolutely no explanation in the prosecution case. 30. Moreover, the applicant and his son both have suffered injuries in the incident, which is established by their medico-legal examination, which was conducted promptly and none of the persons examined by the police have made any whisper about the injuries suffered by the applicant and his son, which prima-facie indicates that they have not come up with complete truth about the incident. 31. The learned counsel for the informant has made very elaborate submissions regarding the civil dispute going on between the parties. The background of civil dispute, in my opinion, has no bearing for considering the bail application of the applicant, as the parameters for considering an application for bail are totally different. Neither the civil rights are to be adjudicated by this Court while deciding an application for bail nor is the Court required to record a finding of innocence or guilt of the accused while deciding the bail application. Neither the civil rights are to be adjudicated by this Court while deciding an application for bail nor is the Court required to record a finding of innocence or guilt of the accused while deciding the bail application. Although several photographs have been annexed with the counter affidavit, claiming that those have been taken from the C.C.T.V. Footage in which the incident has been recorded, there is no photograph from which it can be inferred that the applicant and his son had assaulted the informant's nephews. 32. In Satender Kumar Antil vs. Central Bureau of Investigation 2022 SCC OnLine SC 825, the Supreme Court has reiterated that: - "11. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court." 33. The Supreme Court referred to a decision of this Court in Emperor v. H. L. Hutchinson, AIR 1931 All 356 in which it was said that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 34. In Sanjay Chandra v. CBI, (2012) 1 SCC 40 , the Hon'ble Supreme Court has observed that : "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not loose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." 35. Examining the farts of the present case in light of the law laid down in the aforesaid cases, we find that the accused is claiming ownership to the immovable property in question, regarding which civil litigation is also going on between the parties and no such facts and circumstances have been placed by the state or the informant which may give rise to a reasonable apprehension that in case the accused is released on bail, he would abscond and not he will not make himself available to face the trial. 36. 36. Having considered the aforesaid facts and submissions and keeping in view the fact that no regular weapon is alleged to have been used in the present incident; that the medico-legal examination report of both the injured persons mentioned that the injuries suffered had been caused by a sharp object and by some hard and blunt object, and there is no allegation in the F.I.R. that any of the accused persons had used a hard and blunt object and even in the statements recorded under section 161 Cr.P.C. there is no allegation of any had and blunt object having been used by any of the accused persons; that the applicant and his son have also suffered injuries in the incident; that none of the persons giving statement before the police has made any whisper about the injuries suffered by the applicant and his son; that prima-facie at this stage it appears that those persons have not placed the complete and correct facts in their statement given before the police and also keeping in view of the facts that the applicant is languishing in jail since 27.07.2021, I am of the view that the applicant is entitled to be released on bail pending conclusion of the trial. The bail application is accordingly allowed. 37. Let the applicant - Pawan Kumar Verma, be released on bail in Case Crime No. 41 of 2021, under Sections 307, 436, 325, I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station Feel Khana, District Kanpur Nagar, on his furnishing a personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the dates fixed, unless personal presence is exempted. (iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence. 38. In case of breach of any of the above condition, the prosecution shall be at liberty to move an application bail before this Court seeking cancellation of bail.