Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 211 (UTT)

Gaurav Gupta v. State of Uttarakhand

2023-02-28

ALOK KUMAR VERMA

body2023
JUDGMENT : Alok Kumar Verma, J. Both the Bail Applications have been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in connection with the Case Crime No.486 of 2019, registered at Police Station Haldwani, District Nainital. Gaurav Gupta - applicant is in judicial custody for the offence under Section 302 and Section 394 of the Indian Penal Code (in short, “IPC”) and Section 30 of the Arms Act, 1959. Applicant – Saurabh Gupta is in judicial custody for the offence punishable under Sections 302 and 394 IPC. 2. These two Bail Applications have arisen from one case crime number, therefore, both the Bail Applications are being disposed of by this common order. Record of First Bail Application No.1139 of 2020 will be leading file. 3. The brief facts which are required to be stated are that Smt. Vinita Pandey, the informant, lodged the First Information Report saying that today, i.e. on 15.12.2019 at around 12 o’clock, her husband Bhupendra Pandey had gone to Mangal Parao with Dinesh Sagar in his scooty. Around 1:00 p.m., her nephew Neeraj Pandey informed her that his uncle Bhupendra Pandey was shot dead by Saurabh Gupta and Gaurabh Gupta (applicants – accused persons herein) at Mangal Parao, Sindhi Chauk. Both of them were having enmity with her husband regarding the matter of loan. The First Information Report was registered at 20.40 hrs. on 15.12.2019. 4. Heard learned counsel for the parties. 5. Mr. Arvind Vashistha, learned Senior Advocate, arguing counsel for both the applicants, has contended that Neeraj Pandey, who gave the information to the informant is a hearsay witness. According to the statement of Neeraj Pandey, recorded under Section 161 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), he had received the information regarding the incident on his telephone from his neighbour Rajendra Singh Bisht. Rajendra Singh Bisht is also not an eye witness. According to the prosecution, Dinesh Sagar is an eye witness. Dinesh Sagar had stated in his statement under Section 161 of the Code that he and the deceased were coming back to the shop from Bhotia Parao, at that time the present applicants, who were standing outside their shop, stopped them and started marpeet with him, and, when the deceased tried to intervene, he was also beaten. The deceased picked a brick from the road. The deceased picked a brick from the road. The present applicants pushed him down, took his revolver and fired him (deceased). 6. Mr. Arvind Vashistha, learned Senior Advocate, argued that there are material contradictions in the statements of the alleged eye witnesses. Prosecution has relied upon a CCTV footage, which is not conclusive. The alleged recovered revolver from the possession of Saurabh Gupta belonged to the deceased and the licensed revolver, allegedly recovered on 18.12.2019 from the house of Gaurav Gupta, was planted. The First Information Report is delayed by seven hours. 7. On the other hand, Mr. G.S. Sandhu, learned Government Advocate and Mr. D.K. Sharma, learned Senior Advocate appearing for the victim, have vehemently opposed the Bail Applications and submitted that the trial of the present case is pending before the District and Sessions Judge, Nainital and in the said Sessions Trial, twelve prosecution witnesses have been examined so far and all of them have fully supported the prosecution case. 8. Mr. D.K. Sharma, learned Senior Advocate, has contended that the witness Dinesh Sagar (PW3), an eye witness, who was sitting on the scooty of the deceased at the time of the incident, and witness Sandeep Kukshal (PW4), an eye witness, whose statement under Section 164 of the Code was also recorded, have supported the case of prosecution. He further submitted that during the investigation, evidence was found that the applicants – accused persons had committed the murder of the husband of the informant by firearms near Sindhi Chawk as the applicants having enmity with the deceased. 9. Mr. D.K. Sharma, learned Senior Advocate, has contended that after the incident, applicant – accused Saurabh Gupta was caught by police personnel at the place of incident. After incident, applicant – accused Gaurav Gupta had managed to escape from the spot. He was arrested on 17.12.2019 and on his behest, a licensed revolver was recovered from his house on 18.12.2019. 10. Mr. D.K. Sharma, learned Senior Advocate, further submitted that post-mortem examination of the dead body of the deceased was conducted on 15.12.2019. At the time of the post-mortem examination, nine firearm injuries were found on the dead body and four bullets were recovered from the dead body of the deceased. 10. Mr. D.K. Sharma, learned Senior Advocate, further submitted that post-mortem examination of the dead body of the deceased was conducted on 15.12.2019. At the time of the post-mortem examination, nine firearm injuries were found on the dead body and four bullets were recovered from the dead body of the deceased. He further submitted that according to the post-mortem report, the cause of death was “due to Coma as a result of described head injury sustained due to projectile firearm ammunition injuries which is sufficient to cause death in ordinary course of nature and could be possible in alleged circumstances”. 11. Mr. G.S. Sandhu, learned Government Advocate, argued that both the revolvers were sent for ballistic examination and according to the report of Forensic Science Laboratory, the bullets, which were recovered from the dead body of the deceased, were fired through the licensed revolver of the applicant Gaurav Gupta and the revolver which was recovered from the possession of the applicant – Saurav Gupta at the spot, which belonged to the deceased. 12. At this stage, no reason is found to disbelieve the statements of the eye witnesses. Post-mortem report and ballistic report also support the prosecution’s case. At this stage of hearing on Bail Applications, detailed appreciation of evidence shall affect the trial. Therefore, it would be inappropriate to discuss the evidence in depth at this stage. But, from the perusal of evidence on record, it prima facie appears that the applicants – accused persons were involved in this crime. No reason is found to implicate them. Therefore, no good ground has been made out for enlarging the applicants on bail at this stage. 13. For the reasons afore-stated, and without expressing any views on merits of the case, I reject both the Bail Applications. 14. A copy of this order be placed on the record of First Bail Application No.2909 of 2021.