Ashish Kumar vs State of U.P.

Ravindra Singh, J.—This bail application has been moved by the applicant Ashish Kumar with a prayer that he may be released on bail in Case Crime No. 217 of 2007 under Sections 147, 148, 149, 302, 307, 323, 504, 506 and 436/34, I.P.C. P.S. Rajghat district Gorakhpur.

The prosecution story in brief is that the F.I.R. of this case has been lodged by Smt. Rita Devi on 26.3.2007 at 2.30 p.m. in respect of the incident which had occurred on 26.3.2007 at about 5.30 a.m., the distance of the police station was about 1 km. from the alleged place of occurrence. The applicant and six other co-accused persons are named in the F.I.R. and five miscreants were unknown. It is alleged that the applicant and other co-accused persons attacked on the deceased and his brother Anant Kumar when they were providing fodder to the cow. it is alleged that the co-accused Basu was having a gallon filled with petrol, co-accused Sunder and Vijay were armed with pharsa, co-accused Ghan Shyam was armed with spear, co-accused Braj, co-accused Raj Kumar and the applicant were armed with lathi, five unknown person were armed with pistals and gun. The accused persons who were armed with lathi, pharsa and bhala assaulted the deceased and the injured, at the exhortation of the co-accused Basu. The co-accused who were armed with gun and pistol discharged the shots which created a terror. Thereafter, the co-accused Banu, co-accused Sunder and co-accused Vijay poured petrol at the hut and was set on fire. The deceased and the injured were taken to the hospital Gorakhpur where the deceased was declared dead and the condition of the injured Anant Kumar was very serious. He was referred to the Medical College.

According to the post-mortem examination report the deceased had sustained incised wound, contused swelling, abraded contusion and abrasion. The injuries were caused by the sharp edged weapon and by the blunt object. The injured Anant Chaturvedi had sustained five lacerated wounds, which were on the head. He was medically examined in an unconscious condition.

From the side of the applicant also, cross F.I.R. in Case Crime No. 217 of 2007 under Sections 147, 323, 504 and 506, I.P.C. and Sections 3 (1) and 10 of S.C./S.T. Act was lodged by Vijay Kumar on 26.3.2007 at 1.00 p.m. alleging therein that from the side of the applicant three persons namely Brij Kumar, Shyam Sundar and Vijay Kumar sustained injuries.

Heard Sri P. C. Srivastava, learned Counsel for the applicant, learned A.G.A. and Sri S. K. Chaturvedi learned Counsel for the complainant.

It is contended by the learned Counsel for the applicant that there was a dispute between the parties over a land which has been purchased by the father of the applicant. The prosecution story is false, concocted and highly improbable. The prosecution story is not corroborated by the medical evidence. According to the prosecution version the applicant and two other were shown armed with lathi but the deceased had died due to incised wounds, which was fatal in nature. The injuries caused by blunt object were not fatal. The injured Anant Chaturvedi was medically examined on 26.3.2007 at 6.50 a.m. He had sustained only 5 lacerated wounds, nature of the injuries shows that these injuries were not caused by lathi and the injuries were not dangerous to life. The F.I.R. is delayed, it has been lodged after great thought and consultation. The witnesses named in the F.I.R. are highly interested and partisan. There is no independent witness to support the prosecution story. There is a cross-version of the alleged incident. From the side of the applicant also, the F.I.R. was registered and from the side of the applicant one person has lost the life and one person sustained injuries and from the applicant side three persons sustained injuries caused by hard and blunt object, which have not been explained by the prosecution. The prosecution has not come with clean hand. The alleged occurrence has taken place when the complainant party was trying to take over the possession over the land in dispute by force. It was not pre-intended. The applicant is not having any criminal antecedent. Therefore, he may be released on bail.

In reply of the above contention, it is submitted by the learned A.G.A. and the learned Counsel for the complainant that the applicant was armed with lathi, the deceased had received injuries caused by sharp edged weapon and the lathi, injury No. 4 was contused swelling on the left side head and cutting a haematoma was found, injury No. 6 was also abraded contusion and there was abrasion also. The injuries caused by the hard and blunt object were also dangerous to the life as well as the injuries caused by the sharp edged weapon. The injured and deceased suffered five lacerated wounds, which were on the head, which was caused by the applicant and other co-accused persons by using lathi blows. The injured was in an unconscious condition. The injuries were dangerous to life. The active role of causing injuries to the deceased and the injured has been assigned to the applicant. So far as the cross case is concerned, it has been lodged belatedly, in cross case time of the incident has not been mentioned, it was based on concocted story because during the course of the arrest, Brij Kumar, Shyam Sundar and Vijay Kumar, who were named in the F.I.R. had sustained simple injuries, they were brought by the police to the hospital and they were medically examined on 26.3.2007 at 8.55 p.m., 9.00 p.m. and 9.05 p.m. respectively but the F.I.R. was lodged at 10.00 p.m. The duration of the injuries was mentioned as fresh, which shows that prior to medical examination, they were apprehended by the police and during the course of the arrest they sustained simple injuries. If they had sustained injuries at 5.30 a.m. duration of the injuries would not have been mentioned as fresh, in such a situation no reliance can be placed on the cross case. The cross case was registered only to create the defence. In fact none of the accused had sustained any injury during the course of assault made by them. Therefore, the applicant may not be released on bail.

Considering the facts, circumstances of the case, submission made by the learned Counsel for the applicant and the learned A.G.A. and the learned Counsel for the complainant, and without expressing any opinion on the merits of the case, the applicant is not entitled for bail. Therefore, the prayer for bail is refused.

Accordingly this application is rejected.