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2023 DIGILAW 1104 (ALL)

Nitesh Kumar Singh v. State of U. P.

2023-04-21

MAYANK KUMAR JAIN

body2023
JUDGMENT : 1. Heard Sri Vinay Saran, Senior Advocate assisted by Sri Pradeep Kumar Mishra and Sri Surendra Kumar Chaube, learned counsel for the applicant-Nitesh Kumar Singh. Sri V.P. Srivastava, Senior Advocate assisted by Sri Satya Dheer Singh Jadon, Sri Rajeev Nayan Singh, Sri Vikram Bahadur Singh and Sri Krishan Murari Tripathi learned counsel for the opposite parties-Sabal Singh @ Amritesh Singh, Hari Singh and Raj Narain Pandey. Sri S. K. Ojha, learned AGA, Sri Suraj Singh, Sri Yogeshwar Rai, Ms. Reema Gupta, learned counsel for the State of U.P. 2. Applicant Nitesh Kumar Singh has filed Criminal Misc. Bail cancellation application Nos. 302 of 2021, 188 of 2022 and 207 of 2022 under Section 439(2) of Cr.P.C. seeking cancellation of bail granted to opposite parties namely Shabal Singh @ Amritesh Singh, Hari Singh and Raj Narayan Pandey in Case Crime No. 167 of 2021 u/s 302, 120B IPC relating to Police Station Bairiya, District Ballia. 3. Criminal Misc. Bail Cancellation Application No. 255 of 2022 is filed by the State of U.P. seeking cancellation of bail granted to opposite party/ accused Shabal Singh @ Amritesh Singh by the Additional Sessions Judge, Court No.3, Ballia vide its order dated 05.08.2021 in the above noted case passed in Bail Application No. 1426/2021. 4. Opposite parties/accused Hari Singh and Raj Narayan Pandey were granted bail by the learned In-charge Additional Session Judge, Ballia vide the order dated 28.04.2022 in the above noted case passed in Bail Applications No. 2324/2021 and 95/2022 respectively. 5. Since all the bail cancellation applications relate to same crime number and same set of facts, therefore, these applications are being decided by this common order. 6. The facts of the case are that the applicant/complainant Nitesh Kumar Singh lodged the first information report in Police Station Bairiya, District Ballia, on 07.07.2021 mentioning therein that on 07.07.2021, his elder brother Jaleshwar Singh @ Balbeer Singh along with Shabal Singh @ Amritesh Singh, who was known to him, was returning in his private vehicle after visiting his friend. At around 12.00 noon the car was stopped at the shop of Jauhar Mistri. Five persons riding two motorcycles came there and fired upon his elder brother. On receiving this information, the informant rushed towards the place of occurrence and found that his brother was still alive at that time. At around 12.00 noon the car was stopped at the shop of Jauhar Mistri. Five persons riding two motorcycles came there and fired upon his elder brother. On receiving this information, the informant rushed towards the place of occurrence and found that his brother was still alive at that time. When he, along with some other persons, was taking his brother to Sonbarsa Hospital, his brother told him that Harish Paswan S/O Indradev Paswan, R/O Babubel, Police Station Haldi, Hari Singh S/O late Kedar Singh R/O Bairiya and Raj Narayan Pandey S/O late Singar Pandey R/O Bairiya accompanied by two unknown persons had shot him. His brother also told him that Shabal Singh @ Amritesh Singh committed conspiracy to kill him. As soon as he reached the hospital, the doctors declared his brother dead. 7. Learned counsel for the applicant and learned Government Counsel for the State of U. P. argued that on 14.08.2021 i.e. after the release on bail pursuant to impugned bail orders, the opposite parties namely Shabal Singh @ Amritesh Singh, Harish Paswan and Hari Singh gave threats of causing death or grievous hurt to Amit Kumar Varma, who is the witness of inquest proceedings of the deceased and also the Pairokar of the informant. First information report having crime No.207 of 2021 was registered on 15.08.2021 against them under Section 506, 507 of IPC at Police Station, Bairiya District Ballia. A charge sheet came to be filed against them except Harish Paswan, since he was killed in the police encounter on 03.09.2021. This act of the opposite parties demonstrate that they had misused the liberty of bail granted to them. They would adversely affect the fair trial and they would tamper the evidence proposed to be produced against them during the trial. There is strong apprehension of killing of the applicant as well as the witnesses of the prosecution by these persons/opposite parties. 8. The learned trial Court while passing the impugned bail orders, completely ignored the credible evidence that the deceased before his last breath told the informant and his sister-in-law [Bhabhi]-Ranjana Singh that opposite parties Harish Paswan, Hari Singh, Raj Narain Pandey and two unnamed persons shot him and Shabal Singh @ Amritesh Singh committed criminal conspiracy. 8. The learned trial Court while passing the impugned bail orders, completely ignored the credible evidence that the deceased before his last breath told the informant and his sister-in-law [Bhabhi]-Ranjana Singh that opposite parties Harish Paswan, Hari Singh, Raj Narain Pandey and two unnamed persons shot him and Shabal Singh @ Amritesh Singh committed criminal conspiracy. The statement of the informant was noted down by the Investigating Officer on 02.08.2021 which was available before the trial court on record at the time of granting bail to opposite party Shabal Singh @ Amritesh Singh vide order dated 05.08.2021. Similarly, the statement of Ranjana Singh-the sister in law [Bhabhi] of the deceased, who was also sitting in the same car in which the deceased was being taken to the hospital by the informant, and before whom also the deceased made his oral dying declaration indicating the involvement of the opposite parties in the incident, was also noted down by the Investigating Officer on 17.08.2021. The opposite parties Hari Singh and Raj Narain Pandey were granted bail by the learned trial court on 28.04.2022. The statements of the informant and Ranjana Singh were completely overlooked while granting bail to them by the learned trial court. This demonstrates that the impugned bail orders were passed without considering the record. 9. It is also vehemently argued that the learned trial Court while passing the impugned bail orders completely ignored the statement of Jauhar Ansari, the owner of Motor Garage, who was present at the time of the incident at the place of occurrence. This witness specifically denied that the opposite party Shabal Singh @ Amritesh Singh had any dues against him. It has been wrongly noted in the impugned bail order passed by the trial court in favour of the opposite party Shabal Singh @ Amritesh Singh that the statement of Jauhar Ansari was not recorded by the Investigating Officer since his statement was noted down on 02.08.2021 while the impugned bail order was passed by the trial court on 05.08.2021. Therefore it is clear that his statement was available on record before the trial Court at the time of granting bail to opposite party/ accused Shabal Singh @ Amritesh Singh. 10. It is further submitted that it was wrongly argued before the trial court that the opposite parties also received firearm injuries along with the deceased during the incident. Therefore it is clear that his statement was available on record before the trial Court at the time of granting bail to opposite party/ accused Shabal Singh @ Amritesh Singh. 10. It is further submitted that it was wrongly argued before the trial court that the opposite parties also received firearm injuries along with the deceased during the incident. It is not true since none of the opposite parties were medically examined and their medical reports were also not available on record. Thus, the trial Court was misled and it considered this argument without verifying the record. The learned trial Court had copied and pasted the bail order previously passed in subsequent orders. Thus, the impugned bail orders are not based upon true facts and are passed without verifying the record. The learned trial Court mentioned wrong facts in the bail orders passed in favour of opposite parties namely Hari Singh and Raj Narain Pandey that they were also sitting in the same car along with the deceased and they committed conspiracy to eliminate Jaleshwar Singh @ Balbeer Singh, the deceased. It is factually incorrect since these opposite parties fired upon at Jaleshwar Singh @ Balbeer Singh with firearm weapons at the time and the place of occurrence but they are not assigned the role of committing conspiracy to kill Jaleshwar Singh @ Balbeer Singh. Thus the impugned order is patently wrong and is passed on the basis of incorrect facts. 11. It is also submitted that it was strongly argued on behalf of the applicant that the learned trial court while passing the impugned bail orders, has completely ignored and overlooked the criminal history of opposite parties namely Shabal Singh@ Amritesh Singh and Hari Singh. 12. The opposite party Shabal Singh @ Amritesh Singh had criminal history of two cases i.e. Case Crime No. 98/2015 under Sections 354-B, 506 of IPC Police Station Shivpuri District Varanasi and Case Crime No.49 of 2011 under Sections 147, 148, 323, 307, 342, 506 of IPC Police Station Shivpuri District Varanasi. 13. 12. The opposite party Shabal Singh @ Amritesh Singh had criminal history of two cases i.e. Case Crime No. 98/2015 under Sections 354-B, 506 of IPC Police Station Shivpuri District Varanasi and Case Crime No.49 of 2011 under Sections 147, 148, 323, 307, 342, 506 of IPC Police Station Shivpuri District Varanasi. 13. The opposite party Hari Singh had criminal history of four cases having Crime No.167/2021, under Sections 302/120B IPC, P.S. Bairiya, District Ballia, Case Crime No.207/2021 under Sections 506, 507 IPC, Crime No. 128/2010 under Sections 147, 148, 149, 307, 336, 427 IPC Police Station Dokati, District Ballia and Case Crime No.179/2006 under Sections 307, 302, 120B of IPC and Section 7 of Criminal Law Amendment Act, Police Station Bairiya, Distirct Ballia. 14. Both the opposite parties Shabal Singh @ Amritesh Singh and Hari Singh had concealed their criminal history to their credit and they were history sheeters, however, the learned trial Court wrongly observed otherwise. 15. It is further submitted that the learned trial court while granting bail to opposite parties namely Hari Singh and Raj Narain Pandey overlooked this fact that they were absconding soon after committing the murder of the brother of the informant. Non Bailable Warrants were issued against them. The process of Section 82 Cr.P.C was also issued against opposite party/ accused Hari Singh and it was served upon him. Thereafter, a reward of Rs. 25,000/- was also declared upon him to ensure his presence. Both these opposing parties have eluded the process of law. 16. It is also submitted that the bail granted to the co-accused Abhay Bharti by this Hon’ble Court has been cancelled by the Hon’ble Apex Court after consideration of all the facts and circumstances of this case vide its order dated 07.03.2022 passed in CRIMINAL APPEAL NO.374/ 2022 [SLP [CRL.] NO. 339/ 2022] 17. Learned counsel for the applicant placed reliance on Manoj Kumar Khokhar Vs. State of Rajasthan & Anr. AIR (SC) 364. 18. Per contra, learned counsel for the opposite parties-Shabal Singh @ Amritesh Singh, Hari Singh and Raj Narayan Pandey vehemently opposed the bail cancellation applications and argued that opposite parties have been falsely implicated in this case. The incident was caused by some unknown persons. As a matter of fact, the deceased himself was a history sheeter, having criminal history of as many as 13 criminal cases to his credit. The incident was caused by some unknown persons. As a matter of fact, the deceased himself was a history sheeter, having criminal history of as many as 13 criminal cases to his credit. Therefore, it might be possible that he was killed by some other enemies who were not known to him. Opposite parties Shabal Singh and Hari Singh have been falsely implicated in Case Crime No. 207 of 2021 under Sections 506, 507 of IPC by Amit Kumar Varma. They did not threaten to cause death or grievous hurt to the witness. Amit Kumar Varma is not a witness of fact but he is only the witness of inquest proceedings. 19. It is further submitted that the non-disclosure of criminal history of the opposite party Shabal Singh @ Amritresh Singh was not a deliberate suppression because at the time of presentation of bail application he was in jail, therefore, the information about earlier criminal cases could not be brought on record and the pairokar had no knowledge about his criminal history. 20. He was falsely implicated in Case Crime No.98/2015 under Section 354B, 506 of IPC, Police Station Shivpur, District Varanasi in which the final report was submitted on 10.05.2015 which has been accepted by the court concerned on 27.04.2015. 21. In another case, he was falsely implicated which was registered as S.T. No. 133 of 2012 arising out of Crime No.49/2011, under Sections 147, 148, 323, 307, 342, 506 of IPC, Police Station Shivpur, District Varanasi. In this case, he has been acquitted vide judgement and order dated 22.11.2012 passed by the Additional Sessions Judge, Court No.8, Varanasi. 22. So far as the criminal history of opposite party Hari Singh is concerned, in two cases, Case Crime No.167/2021 is the present case, and in Case Crime No.207/2021 under Section 506, 507 IPC he has already been granted bail. In the third case, Crime No. 128/2010 under Section 147, 148, 149, 307, 336, 427 IPC, Police Station Dokati, District Ballia, he is discharged by the court concerned. In the fourth case having Crime No.179/2006, under Sections 307, 302, 120B of IPC and Section 7 of Criminal Law Amendment Act, Police Station Bairiya Distirct Ballia, he is acquitted by the trial Court. 23. In the fourth case having Crime No.179/2006, under Sections 307, 302, 120B of IPC and Section 7 of Criminal Law Amendment Act, Police Station Bairiya Distirct Ballia, he is acquitted by the trial Court. 23. It is further argued that the informant is not the eye witness of the incident and the alleged eye witness Jauhar Mistri had not taken the name of opposite parties Hari Singh and Raj Narain Pandey. The first information report is silent about the motive behind the murder of the deceased. The role of opposite parties Hari Singh and Raj Narain Pandey is quite different from the role of opposite party Shabal Singh @ Amritesh Singh and co-accused Abhay Bharti. 24. It is further submitted that the opposite party Raj Narain Pandey is not named as accused in Crime No. 207 of 2021 under Section 506, 507 of IPC. No charge sheet is filed against him in this case. He never made any threat to any witness of the case. He is a retired person from the Army having no rivalry with the deceased. The deceased had criminal history of 13 cases and the deceased was trying to grab his landed property. The deceased had attempted to murder his son Suryakamal Pandey therefore, an FIR was lodged against him and other co-accused namely Maniram Singh and Amit Varma having Case Crime No.173 of 2019, under Section 307, 147, 148, 149 IPC Police Station Bairiya , District Ballia. Rajnarayan Pandey and his wife lodged NCR No.37 of 2019, 67 of 2019 and 125 of 2019. Only for this reason he has falsely been roped in the present case. 25. It is vehemently argued that as per the postmortem report of the deceased Jaleshwar Singh @ Balbeer Singh, he sustained as many as 13 firearm injuries. During the postmortem, blood was found to be present in both the nostrils and the mouth of the deceased. Closed bloodstains were present over the face and clothes. Both the lungs of the deceased were found to be punctured and right lower ventricle of the heart was found to be punctured. In view of the above fire arm injuries and findings, the deceased could not have spoken even a word and hence, there could be no occasion of making dying declaration by him before the informant and Ranjana Singh. In view of the above fire arm injuries and findings, the deceased could not have spoken even a word and hence, there could be no occasion of making dying declaration by him before the informant and Ranjana Singh. The alleged dying declaration is not a credible evidence and it cannot be proved during the course of the trial. 26. It is also submitted that the bail granted to the co-accused Abhay Bharti by this Hon’ble Court was cancelled by the Hon’ble Supreme Court for the reason that he was previously convicted and sentenced for imprisonment for life under Section 302 and 506 IPC in earlier FIR No.467 of 1998. The opposite parties Shabal Singh @ Amritesh Singh and Hari Singh are not previously convicted and their criminal history is properly explained. The impugned bail order was passed by the learned trial Court after considering all the material available on record. The present Bail Cancellation Applications deserve to be dismissed. 27. Learned counsel for the opposite parties placed reliance in Pooran Vs. Ramvilas & Anr., 2001 CRI.L.J. 2566 and submitted that setting aside the unjustified illegal and perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. 28. I have perused the record. 29. Section 439 (2) in The Code Of Criminal Procedure, 1973 provides : “(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. 30. The Hon’ble Apex Court in Deepak Yadav VS. State of U.P. & Anr., 2022 (8) SCC 559 referred the grounds for cancellation of bail as laid down by the two Judge bench in Dolat Ram And Others Vs. State of Haryana, (1995) 1 SCC 349 : “... (i) interference or attempt to interfere with the due course of administration of Justice (ii) evasion or attempt to evade the due course of justice (iii) abuse of the concession granted to the accused in any manner (iv) Possibility of accused absconding (v) Likelihood of/actual misuse of bail (vi) Likelihood of the accused tampering with the evidence or threatening witnesses.” 31. Based on the above grounds, the Hon’ble Apex Court in Deepak Yadav (supra) further observed that: “33. Based on the above grounds, the Hon’ble Apex Court in Deepak Yadav (supra) further observed that: “33. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :- 33.1 Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record. 33.2 Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim. 33.3 Where the past criminal record and conduct of the accused is completely ignored while granting bail. 33.4 Where bail has been granted on untenable grounds. 33.5 Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. 33.6 Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified. 33.7 When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case.” 32. Perusal of the impugned bail order, granting bail to opposite party /accused Shabal Singh @ Amritesh Singh dated 05.08.2021 passed by the learned Additional Sessions Judge, Court No.3, Ballia relating to Bail application No.1426 of 2021, goes to show that in the argument paragraph, advanced on behalf of the accused, it is mentioned that “Kathit Ghatna me mratak Jaleshwar ke sath aawedak ko bhi fire arms ki choten aayi hain” (Applicant also sustained firearm injuries during the incident along with the deceased Jaleshwar)…..uska koi apradhik itihas nahi hai” (he has no criminal history to his credit). 33. On the basis of the record it is found that opposite party/ accused Shabal Singh @ Amritesh Singh did not sustain any firearm injury during the incident. He was not medically examined and no medical report is available on record. The learned trial Court did not confirm this with the record but considered this argument while granting bail to the opposite party. He was not medically examined and no medical report is available on record. The learned trial Court did not confirm this with the record but considered this argument while granting bail to the opposite party. So far as the criminal history of the opposite party accused Shabal Singh @ Amritesh Singh is concerned, it is brought on record that he had criminal history of two cases at the time of granting of bail to him. One was case crime no.98/2015 under Section 354B, 506 IPC P.S. Shivpur, District Varanasi and another was Case Crime No.49 of 2011, under Sections 147, 148, 323, 307, 342, 506 IPC P.S. Shivpuri District Varanasi. This criminal history is not controverted by opposite party no.2/Accused Shabal Singh @ Amritesh Singh. Through his counter affidavit he explained the criminal history to his credit that in the first case, final report was submitted and in another case he was acquitted after trial by the trial court. It may be considered as criminal history is explained but its existence is not denied. The argument raised on behalf of the opposite party/accused Shabal Singh @ Amritesh Singh cannot be accepted that non disclosure of the criminal history on his part was not deliberate since he was confined in jail and these facts were not within the knowledge of his pairokar. Therefore, it is clear that opposite party/accused Shabal Singh @ Amritesh Singh had criminal history at the time of presentation of bail application which was concealed by him. Learned trial Court believed this contention and it was one of the grounds for granting the bail to the accused Shabal Singh @ Amritesh Singh. 34. So far as the impugned order granting bail to opposite parties Hari Singh and Raj Narain Pandey is concerned, similar narration is found in the argument paragraph quoted by the trial court, advanced on behalf of these opposite parties that they also sustained firearm injuries during the incident alongwith the deceased Jaleshwar Singh @ Balbeer Singh and opposite party Hari Singh did not have any criminal history to his credit. 35. The criminal history of opposite party Hari Singh is brought on record which are as follows: (i) Case Crime No. 167/2021, under Section 302, 120B IPC PS. 35. The criminal history of opposite party Hari Singh is brought on record which are as follows: (i) Case Crime No. 167/2021, under Section 302, 120B IPC PS. Bairiya, District Ballia (ii) Case Crime No. 207/2021, under Section 506, 507 IPC , P.S. Bairiya, District Ballia (iii) Case Crime No.128/2010, under Section 147, 148, 149, 307, 336, 427 IPC, P.S. Dokati, District Ballia (iv) Case Crime No. 179/2006 under Section 307, 302, 120B of IPC, Section 7 of Criminal Law Amendment Act, P.S. Bairiya, District Ballia. 36. Opposite party/ accused Hari Singh through his counter affidavit has explained the aforesaid criminal history. 37. It is observed that the existence of criminal history of opposite party/ accused Hari Singh is not controverted by him. Merely offering an explanation does not mean that it may be considered as having no criminal history. 38. So far as mentioning of the argument that during the incident opposite parties Hari Singh and Raj Narain Pandey also sustained firearm injury alongwith deceased Jaleshwar Singh @ Balbeer singh is concerned, it is not supported by the record. It was also wrongly argued that there were allegation of committing conspiracy by the opposite parties Hari Singh and Raj Narayan Pandey whereas in the first information report they were assigned a specific role of firing at deceased Jaleshwar Singh @ Balbeer Singh and they were named in the FIR as shooters. It is apparent that learned trial court did not verify this fact from the record and it appears that in a routine manner this argument was cut and pasted from the previous bail order passed in favour of Shabal Singh @ Amritesh Singh. Suffice to mention here that learned trial court in its observation has mentioned that the allegation of conspiracy to kill deceased Jaleshwar Singh @ Balbeer Singh has been made against opposite parties Hari Singh and Raj Narain Pandey. As discussed, the observation of the learned trial court is not based upon the record and also not based upon the facts of the case. 39. Perusal of the case diary goes to show that the statement of Jauhar Mistri was noted down by the Investigating Officer on 02.08.2021. Bail was granted by the learned trial Court to opposite party/ accused Shabal Singh @ Amritesh Singh on 05.08.2022. 39. Perusal of the case diary goes to show that the statement of Jauhar Mistri was noted down by the Investigating Officer on 02.08.2021. Bail was granted by the learned trial Court to opposite party/ accused Shabal Singh @ Amritesh Singh on 05.08.2022. It is incorrectly observed by the trial court that the statement of Jauhar Mian was not recorded in case diary by the Investigating Officer because at the time of hearing of bail application and passing of impugned order granting bail to Shabal Singh @ Amritesh Singh, his statement was very much available in the case diary. It appears that learned trial court did not consult the record in proper manner and made observation otherwise. The witness Jauhar Mistri specifically stated in his statement given to the Investigating Officer that the opposite party Shabal Singh @ Amritesh Singh had no dues against him. He further stated that at the time of the incident Shabal Singh @ Amritesh Singh was sitting in the car next to Jaleshwar Singh @ Balbeer singh. When firing took place, he opened the door of the car and ran away but he returned to close the door and then again ran away. The conduct of the opposite party/ accused Shabal Singh @ Amritesh Singh got corroboration from the CCTV footage. This material evidence was overlooked by the learned trial Court. 40. The incident of the present case Crime No.167 of 2021 under Section 302/120B of IPC is said to have been occurred on 07.07.2021. Amit Kumar Varma, the witness of inquest proceedings and alleged pairokar of the informant, lodged First Information Report with Police Station Bairiya under Section 506, 507 IPC naming Harish Paswan, Hari Singh and Shabal Singh @ Amritesh Singh with the allegation that they threatened and restrained him on 14.08.2021 from doing pairvi on behalf of the informant Nitesh Kumar Singh failing which he would also face dire consequences. This threat was given by Harish Paswan on a call made on the mobile of Sameer Thakur. On receiving this threat he promptly informed the Superintendent of Police, Ballia that he apprehended causing of death or grievous hurt by the said persons. After the investigation, a charge sheet came to be filed against these persons. This threat was given by Harish Paswan on a call made on the mobile of Sameer Thakur. On receiving this threat he promptly informed the Superintendent of Police, Ballia that he apprehended causing of death or grievous hurt by the said persons. After the investigation, a charge sheet came to be filed against these persons. Therefore, it is apparent that after releasing on bail pursuant to impugned bail orders, opposite parties Shabal Singh and Hari Singh made threat to witness Amit Kumar Varma of causing him death or grievous hurt. 41. The informant in his first information report mentioned that when he was taking his brother to Sonbarasa Hospital along with some persons, his brother told him that Harish Paswan S/O Indradev Paswan, R/O Babubel, Police Station Haldi, Hari Singh S/O late Kedar Singh R/O Bairiya and Raj Narayan Pandey S/O late Singar Pandey R/O Bairiya and two unknown persons had shot him. His brother also told him that Shabal Singh @ Amritesh Singh committed conspiracy to kill him. 42. It is to be noted here that the statement of the informant Nitesh Kumar Singh was noted down by the Investigating Officer on 16.07.2021 while the impugned bail order granting bail to opposite party Shabal Singh @ Amritesh Singh was passed on 05.08.2021. Therefore, the statement of the informant Nitesh Kumar Singh that deceased before his last breath made an oral dying declaration was available on record while passing the impugned bail order dated 05.08.2021 but it was not taken into consideration by the trial court. Similarly, the statement of Ranjana Singh-sister in law (bhabhi) of the informant, was noted down by the Investigating Officer on 17.08.2021 wherein she stated that when Jaleshwar Singh @ Balbeer Singh was being taken to the hospital by the informant after the incident she was also sitting in the same car and that she was also the witness of the said oral dying declaration. 43. The statements of the informant and Ranjana Singh were available on record before the trial court but while passing the impugned bail orders dated 28.04.2022 granting bail to opposite parties Hari Singh and Raj Narain Pandey, these statements were not considered by the trial Court. Therefore, it can be said that the credible evidence was not taken into consideration by the trial Court. 44. Opposite parties Hari Singh and Raj Narayan remained absconded soon after the incident. Therefore, it can be said that the credible evidence was not taken into consideration by the trial Court. 44. Opposite parties Hari Singh and Raj Narayan remained absconded soon after the incident. Process of non bailable warrants were issued against both of them. Opposite party/accused Raj Narain Pandey was arrested on 29.12.2021. Process of section 82 Cr.P.C. was issued by the competent court against opposite party/ accused Hari Singh. A reward of Rs.25,000/-was also declared on him to ensure his presence during the investigation. Pursuant to this process he surrendered before the trial Court on 15.12.2021. This aspect was also not taken into consideration while granting bail to Hari Singh and Raj Narain Pandey by the learned trial Court. 45. One important aspect to be taken into consideration is that the co-accused Abhay Bharti, who was identified through CCTV footage, was granted bail by this Court. His bail order was challenged before the Hon’ble Apex Court by the informant/ Applicant in Criminal Appeal No.374/2022 (@SLP (Crl.) No.339/2022) and the bail granted to him was cancelled by the Hon’ble Apex Court vide order dated 07.03.2022. 46. The argument is advanced on behalf of the opposite parties that the bail of co-accused Abhay Bharti was cancelled by the Hon’ble Apex Court since he was already convicted and sentenced for imprisonment of life under Section 302/506 IPC in another case, however, none of the contesting opposite parties have earlier been convicted. 47. This argument cannot be accepted since there is no denial that the opposite parties Shabal Singh @ Amritesh Singh and Hari Singh had criminal history to their credit which was concealed by them and they misled the trial court into believing that they had no criminal history to their credit. Moreover, the criminal history to the credit of opposite parties are not controverted by them. 48. The Hon’ble Apex Court in its order date 07.03.2022 observed that it was second case against co-accused Abhay Bharti under Section 302 IPC. In the present matter also this is a second case under Section 302 IPC against opposite party/ accused Hari Singh. The order of cancellation of bail granted to the co-accused Abhay Bharti was also not considered by the trial Court while passing the impugned order dated 28.04.2022. 49. In the present matter also this is a second case under Section 302 IPC against opposite party/ accused Hari Singh. The order of cancellation of bail granted to the co-accused Abhay Bharti was also not considered by the trial Court while passing the impugned order dated 28.04.2022. 49. The learned trial Court while granting bail to Shabal Singh @ Amritesh Singh vide order dated 05.08.2021 overlooked the oral dying declaration made by the deceased Jaleshwar Singh @ Balbeer Singh about involvement of opposite parties/accused who were accompanied by two unknown persons. Similarly, while passing the impugned bail order dated 28.04.2022 the learned trial Court completely overlooked the statements of the informant and Ranjana Singh as noted down by the Investigating Officer in which the oral dying declaration of the deceased was narrated. 50. On the basis of the above discussion it is concluded that: (i) Opposite parties Shabal Singh @ Amritesh Singh, Hari Singh and Raj Narain Pandey were named in the first information report. Opposite party Shabal Singh @ Amritesh Singh committed conspiracy to kill Jaleshwar Singh @ Balbeer Singh. Opposite parties Hari Singh and Raj Narain Pandey were assigned the role that they open fired with firearm weapon at the Jaleshwar Singh @ Balbeer Singh which resulted in his death. (ii) The deceased before his last breath made oral dying declaration before the informant and Ranjana Singh about involvement of these opposite parties in the incident. These statements were noted down by the Investigating Officer and were available on record before the trial Court while passing of the impugned bail orders. This evidence was completely overlooked by the trial court. (iii) Opposite parties Shabal Singh @ Amritesh Singh and Hari Singh had criminal history to their credit which were concealed by them before the trial Court. (iv) Bail granted to the co-accused Abhay Bharti has been cancelled by the Hon’ble Apex Court considering the facts and circumstances of the case. (v) The statement of Jauhar Mistri was not taken into consideration by the trial Court while it was already available on record. (iv) Bail granted to the co-accused Abhay Bharti has been cancelled by the Hon’ble Apex Court considering the facts and circumstances of the case. (v) The statement of Jauhar Mistri was not taken into consideration by the trial Court while it was already available on record. (vi) Pursuant to impugned bail order after their release on bail another Case Crime No. 207 of 2021, under Section 506, 507 IPC was registered against opposite parties Shabal Singh @ Amritesh Singh and Hari Singh and a charge sheet has been submitted against them for the offence of making threat of causing death or grievous hurt to the witness of the case. (vii) The learned trial Court wrongly mentioned that opposite parties Hari Singh and Raj Narain Pandey were sitting in the same car with the deceased and they also received firearm injury and they committed conspiracy whereas a specific role of firing with firearm weapons at deceased were assigned to them and neither they were medically examined nor any medical report was available on record. (viii) It was wrongly considered by the trial court that opposite party Shabal Singh @ Amritesh Singh also received firearm injury but it was not supported by any medical report. The observation made by the learned trial court is factually incorrect. (ix) The learned trial court while passing impugned bail order dated 28.04.2022 also overlooked the aspect that opposite parties Hari Singh and Raj Narain Pandey were absconding soon after the incident and they eluded the process of law. 51. The learned trial Court passed the impugned bail orders taking into consideration the incorrect facts of the case, therefore, all the bail cancellation applications deserve to be allowed. 52. Having considered the facts and circumstances of the case, the material available on record and the observations made above, the Court is of the opinion that the impugned bail orders dated 05.08.2021 and 28.04.2022 passed by learned trial Court cannot be sustained. Accordingly, all the aforesaid bail cancellation applications are allowed and the impugned bail orders dated 05.08.2021 and 28.04.2022 are hereby set aside. 53. Opposite parties Shabal Singh @ Amritesh Singh, Hari Singh @ Hare Ram Singh and Raj Narain Pandey are hereby directed to surrender within a week before the court concerned. 54. Any observation made above shall not be treated as any finding on the merit and shall not prejudice the trial. 55. 53. Opposite parties Shabal Singh @ Amritesh Singh, Hari Singh @ Hare Ram Singh and Raj Narain Pandey are hereby directed to surrender within a week before the court concerned. 54. Any observation made above shall not be treated as any finding on the merit and shall not prejudice the trial. 55. Registrar (compliance) is also directed to communicate this order to District Judge concerned for necessary compliance.