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2023 DIGILAW 1987 (ALL)

Kanwar Pal v. State Of U. P.

2023-08-18

KRISHAN PAHAL

body2023
JUDGMENT : 1. Heard Sri Inder Pal Singh Tomar, learned counsel for applicant and Sri Kuldeep Singh Tomar, learned counsel for the informant as well as Sri Sunil Kumar, learned A.G.A. for State and also perused the material available on record. 2. The present application for anticipatory bail has been filed for protection in regard to FIR/Case Crime No. 262 of 2022, under Sections 147, 148, 149, 307 & 504 of I.P.C., P.S.- Khatauli, District- Muzaffar Nagar. 3. At the very outset, learned counsel for the applicant has claimed parity with co-accused Nitin Rathi, who has been granted interim protection by another Bench of this Court vide order dated 4.4.2023 passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 3367 of 2023. 4. On the other hand, learned counsel for the informant has vehemently opposed the above submission of learned counsel for the applicant on the ground that the applicant is not entitled to anticipatory bail as the anticipatory bail application of co-accused Nitin Rathi was dismissed as infructuous vide order dated 31.05.2023. PROSECUTION STORY: 5. As per prosecution story, the co-accused persons, Charan Singh, Sopal and Sukhpal had destroyed the sugarcane crop of the field of the informant and that of his neighbours Rakesh and Vikky by ploughing it by his tractor. The matter was reported to Senior Officers. Subsequent to it, on 27.5.2022 at about 06:30 AM, the applicant along with co-accused persons Charan Singh, Sopal, Sukhpal and Nitin came to the field of the informant along with their tractor and started ploughing it again. The informant and his brother Rupendra Kumar asked them to refrain from doing so at which the applicant and co-accused Nitin fired at them by the country made pistols which they were carrying besides hurling abuses at them thereby causing serious injuries to Rupendra (brother of the informant). On raising alarm by the informant, the villagers rushed there and saved the informant and his brother. The brother of the informant Rupendra Kumar was rushed to government hospital at Khatauli for treatment and was referred to district hospital, Muzaffar Nagar. After admitting his brother at Muzaffar Nagar, the informant lodged the FIR on the same day at 12:10 PM. RIVAL CONTENTIONS 6. The brother of the informant Rupendra Kumar was rushed to government hospital at Khatauli for treatment and was referred to district hospital, Muzaffar Nagar. After admitting his brother at Muzaffar Nagar, the informant lodged the FIR on the same day at 12:10 PM. RIVAL CONTENTIONS 6. Learned counsel for the applicant has stated that there is a cross version to the present FIR which was instituted subsequently at FIR No.419 of 2022 on 20.08.2022 regarding the same date and time of the incident. Learned counsel has further stated that at this point of time, it cannot be ascertained as to which party was the aggressor, as such, the applicant is entitled for anticipatory bail. Learned counsel has also stated that the applicant is 55 years old person and one of the co-accused Charan Singh, who happens to be his father, is 78 years of age, as such, he is entitled for anticipatory bail on this ground also. 7. Learned counsel for the applicant has further submitted that the injury reports are fake and have been manufactured by the informant as another injured has been added later on. The injury report of Rupendra Kumar is fake as there are two lacerated wounds sustained by him which are as follows:- "(i) L/W size 15 x 12 cm over lateral aspect of Rt. lower back just over Rt Iliac crest. Bleeding present, depth not probed, muscle & soft tissue exposed (KUO), X-ray L.S. spine AP/Lat. and surgeon opinion for nature of injury, depth & type of weapon used, X-ray PBH AP View. (ii) L/W size 3 x 0.5 cm, scalp deep over Rt. parietal area of skull 12' O clock position." 8. The Radiologist reported that multiple radio opaque shadows of variable sizes of metallic density are seen in Rt. Iliac region. Fracture of right iliac crest bone. In the supplementary report, the injury no.1 was found to be grievous in nature. The surgery was undertaken and foreign bodies were removed. 9. Learned counsel for the applicant has also stated that the informant has suppressed the genesis as he cooked up a story later on that there were radio opaque shadow seen on the body of Rupendra Kumar. To buttress his submission, he has placed much reliance upon the judgment of Apex Court passed in Subramani And Ors Vs. 9. Learned counsel for the applicant has also stated that the informant has suppressed the genesis as he cooked up a story later on that there were radio opaque shadow seen on the body of Rupendra Kumar. To buttress his submission, he has placed much reliance upon the judgment of Apex Court passed in Subramani And Ors Vs. State of Tamil Nadu reported in (2002) 7 SCC 210 whereby the appeal was allowed and the appellants therein were acquitted from all the charges. The operative paras of the said judgment read as under:- "29. Once it is held that the appellants did not exceed their right of private defence, it must logically follow that they cannot be convicted of the lesser offences under Sections 324 and 326 IPC, because in the same transaction and in exercise of their right of private defence they had caused injuries to some of the prosecution witnesses. 30. In the result, this appeal is allowed and the appellants are acquitted of all the charges leveled against them. The appellants shall be released forthwith unless required in any other matter." 10. Learned counsel for the applicant has further stated that there are general allegations against all the accused persons and the co-accused Nitin Rathi has already been granted anticipatory bail. 11. Per contra, learned counsel for the informant as well as learned AGA have vehemently opposed the anticipatory bail prayer of the applicant on the ground that the anticipatory bail application of co-accused Nitin Rathi has been dismissed as infructuous vide order dated 31.5.2023. He was granted anticipatory bail as an interim measure vide order dated 4.4.2023 but the same has not been confirmed. Learned counsel has argued that the injury report indicates that injury no.1 was grievous in nature. The cross-FIR instituted after moving an application u/s 156(3) Cr.P.C. by the son of the co-accused Sukhpal indicates that the applicant and other co-accused persons were very much present at the place of occurrence at that time. 12. A bare perusal of the FIR No.419 of 2022 indicate towards the presence of the applicant at the place of occurrence. Learned counsel has also placed much reliance upon the judgment of this Court passed in Shivam Vs. 12. A bare perusal of the FIR No.419 of 2022 indicate towards the presence of the applicant at the place of occurrence. Learned counsel has also placed much reliance upon the judgment of this Court passed in Shivam Vs. State of U.P. and another, reported in AIROnline 2021 All 484, wherein it has been categorically stated that if there is a cross version, the accused persons are not entitled for anticipatory bail. CONCLUSION: 13. The very first argument of the learned counsel for the applicant does not hold good on the ground that the anticipatory bail application of the co-accused Nitin Rathi was granted anticipatory bail as an interim measure till the pendency of investigation vide order dated 4.4.2023 and the said anticipatory bail application has been dismissed as infructuous by the coordinate Bench of this Court vide order dated 31.5.2023. The FIR is prompt as the informant had rushed to save the life of his brother Rupendra Kumar and admitted him in a hospital and then had lodged the FIR the same day and also taking into consideration the injury report of injured person Rupendra Kumar. The cross FIR further fortifies the prosecution allegation that the applicant was present at the place of occurrence. 14. I have also gone through the judgment of Apex Court passed in Subramani (supra) referred by the learned counsel for the applicant and finds that the said judgment does not apply to the present case as it is regarding the criminal appeal whereby the right of private defence is said to have been exercised by the accused therein. The case of the applicant is not of right of private defence. 15. Considering the rival submissions advanced by the learned counsel for the parties and the judgment of Apex Court passed in Subramani (supra) and the judgment of this Court passed in Shivam (supra), I do not find it a fit case to grant anticipatory bail in the case. 16. In view of the above, the present anticipatory bail application is accordingly, rejected.