Deepak Yadav vs State of U.P.

Shiv Shanker, J.—This is the first application for bail moved on behalf of the applicant before this Court in Case Crime No. 188 of 2006, under Sections 147, 148, 149, 307, 302, 504 and 506, I.P.C. and 7, Criminal Law Amendment Act, Police Station North Firozabad, district Firozabad.

The prosecution case, in brief, as per the first information report, is that first informant Sarman Yadav and his brother Rakesh Yadav were returning to their village from market on 20.5.2006 at about 9.30 a.m. by their Pulser motor cycle. As soon as they reached on Bodhashram Road under the over-bridge, situated in front of the house of Manoj Yadav, accused Chandra Prakash Yadav, Deepak Yadav, Bale, Saurabh, Ravi Pandi, Abbu and Satya Prakash Lal, armed with revolvers and country made pistols were found standing there. After seeing them, accused, Satya Prakash Lal and Chandra Prakash raised alarm to kill them upon which Deepak Yadav, Bale, Saurabh, Ravi Pandit and Abbu opened fires. Consequently, Rakesh fell down with the motor cycle. He received injuries and died on spot but the first informant escaped. The incident was witnessed by Shanker Yadav and others. A litigation was pending between Satya Preakash Lal and first informant as he wanted to dispossess the first informant from his plot and house. Due to this, he was murdered. The first information report was lodged on the same day at 9.35 a.m.

Heard learned Counsel for the applicant and learned A.G.A. as well as perused the whole records.

It is contended by the learned Counsel for the applicant that that the first informant alongwith one Shanker Yadav has been shown eye-witness of the alleged occurrence. In the first parcha of the case diary, which was prepared after the first information report, the parentage and address of Serman Yadav has been interpolated which showed that till then Serman Yadav was not present. It is further contended that the first informant himself went to lodge the first information report to the police station and Investigating Officer is present but his statement u/s 161, Cr. P.C. was not recorded. The Investigating Officer directly went to the spot and prepared the inquest report. Initially, in the second page of the inquest, only Sections 302/307 /506, I.P.C. was mentioned and thereafter Section 147/148/149/504, I.P.C. were added. The name of the informant appears to have been added later on. It is further contended that after the inquest report, the first informant was interrogated on the day of incident. In this case, the first information report was registered on 20.5.2006 at 10.30 a.m. After preparation of Chik report, the G.D. entry was prepared and it was copied down in the case diary. Thereafter, the Investigating Officer reached on the spot for inquest covering two kilometers distance. He proceeded with the inquest proceedings at 10.30 a.m. and concluded the same at 10.30 a.m. itself which is not possible in any way. It is further contended that the recovery memo of two bullets was prepared at 10.45 a.m. and the recovery memo of blood stained and plain earth was prepared at 10.50 a.m.

It is further contended that till 23.6.2006, nothing material was done and Shanker Yadav was not interrogated. On 23.6.2006, the Investigating Officer has taken the statements of Serman Yadav and Shanker Yadav in writing duly signed by them. Thereafter, he copied down it in the case diary. Thereafter, certain questions were put by the Investigating Officer to these two witnesses which is the additional statement written in the case diary than the written statement. It is further contended that the victim was assaulted at place ''X'' and he was fired at from place ''D''. The distance between the place ''X'' and ''D'' is five paces. The first informant is shown to run away towards north then turn towards west. It is no where shown from where he had seen the incident at place ''C''. Witnesses are said to have seen the incident and who is that witness is not mentioned in the site plan. It is further contended that the firing was made from a distance of five paces but there is no blackening and charring in and around the injury which is not possible. It is further contended that the presence of co-accused Satya Prakash Yadav was found false during the course of investigation as he was present in Sholapur (Maharashtra). Therefore, a final report was filed against him. It is further contended that the deceased was having criminal history nine cases including Sections 307, 380, 411, 323, 355 etc. I.P.C. Therefore, it appears that he was murdered by his enemies and the first informant and other witnesses were not present at the time of the occurrence. The presence of first informant is also suspicious as he did not receive any injury in the alleged occurrence while he was also going with the deceased upon the said motor cycle. It, is further contended that after the murder, police reached at the place of incident and recorded the statements of the persons of nearby localities. Their names are Bhagwan, Anil. Vikash Pagoria and Shakir who stated that they saw one fallen motor cycle and one person falling therewith. This also supports that they did not see the accused persons whose names have been disclosed in the first information report. It is further contended that no prosecution witness would state as to who fired from which weapon and that he did not see Satya Prakash Lal at the time of incident. The second statement of first informant reveals that the presence of accused Satya Prakash Lal at the time of incident was found suspicious. On that basis, the presence of eye-witnesses becomes suspicious. It is further contended that the first informant jumped from the moving motor cycle as per his statement but no injury report has been filed by him to show that he received any injury while doing this act. It is further contended that when the first informant saw five injuries on the dead body of deceased then he implicated five accused persons in the alleged occurrence to cause fire arm injuries on the dead body of the deceased. It is further contended that the post mortem report suggests that injury No. 2 which correspond to injury No. 1, is a rifle shot as the exit wound was much larger than the entry wound. Injury No. 1 and injury No. 3 appear to have been caused by same weapon meaning thereby any one of the accused persons at least is innocent and has been falsely implicated. Therefore, it appears that the deceased was killed when he was all alone as has been supported by locals in "Samai Sakshya" at the place of incident.

On the other hand, learned A.G.A. has opposed the bail application.

This incident had allegedly taken place on 20.5.2006 at 9.30 a.m. while the first information report was lodged by the first informant Serman Yadav, brother of deceased Rakesh on the same day at 10.35 a.m. meaning thereby it was lodged within 1.05 hours after covering the distance of two Kms. Such delay has been explained by the first informant in his statement by stating that he went to his house and for giving the information of the murder. After leaving the other eye-witness Shanker Yadav and thereafter lodged the first information report.

Much stress has been laid by the learned Counsel for the applicant that the first information report is ante timed. The first ground is that the parentage and address of the first informant has been interpolated in the first parcha of the case diary. The second ground is that the offence of Section 307/302/506, I.P.C. was mentioned in the inquest report and later on Sections 147, 148, 149 and 504, I.P.C. were added. Thirdly, the date and time of starting the inquest proceeding are 20.5.2006 at 10.30 a.m. and completing the same on the same day at 10.30 a.m. On that basis, it has been argued that the first information report was not even in existence at the time of preparation of the inquest report. This contention has no force. The Photostat copy of the Chik report is on record. It reveals the name of informant Serman Singh son of Sunahri Lal, resident of Surya Nagar near Prakash Talkies, Police Station North Firozabad. There is no interpolation in the Chik report regarding the sections, parentage of the first informant. No doubt. C.D. Parcha No. 1 is not the first document. It is second document. It is to be prepared on the basis of Chik F.I.R. wherein parentage of the first informant and address was written. In such circumstances, the same should have been written by the Investigating Officer in Parcha No. 1 of the case diary. Therefore, the mistake may be occurred at the time of copying it out from the first document. It is also worthwhile to mention here that the time to prepare the inquest report could not be the same at 10.30 a.m. After perusal of the Photostat copy of the inquest report, it appears that the time to start of the inquest report has not been mentioned. Therefore, it is the mistake of the police officer who prepared the inquest report. It was the duty of the police officer to mention the time of the start of inquest proceeding. No benefit of the same can be given to the accused regarding the mistake on the part of the Investigating Officer. The first information report goes to show that it was lodged at 10.35 a.m. After covering the distance of two Kms. meaning thereby within 1.05 hours of the alleged occurrence. Therefore, the contention made on behalf of the applicant that the first information report was ante-timed has no force. Therefore, it is liable to be deemed that the first information report was lodged promptly by the first informant wherein the present applicant alongwith others have been named.

It has specifically been mentioned in the first information report as well as in the statement of first informant and another eye-witness Shanker Yadav that Rakesh alongwith first informant was returning from the market to their village and when he reached at the place of occurrence where the present applicant alongwith six others, who have been nominated in the first information report, were present with revolvers and country-made pistols. On the exhortation of other accused, the present applicant Deepak Yadav and co-accused Saurabh, Ravi Pandey and Abbu made firing upon them. Consequently, Rakesh fell down from the motor cycle after receiving the injury and died on spot. Thereafter, they fled away from the place of occurrence. The post mortem report of the deceased supports this version as five gun shot wound of entry, having two exit wounds, were found on the dead body of deceased. Although, the first informant did not sustain any injury in the alleged occurrence as he made his escape good from the moving motor cycle from that place. On the other hand, the motive of the assailants could be only to commit the murder of the deceased. In such circumstances, he could not receive injury and on that basis it cannot be said at this stage that he was not present at the time of alleged occurrence.

During the course of investigation, the statements of Muunishanand, son of late Sri Ramanand Garg and Sri Bharti Sharma son of late Sri Bisheshwarnand have been recorded wherein they have stated that the present applicant alongwith other assailants were present at the place of occurrence on 20.5.2006 at 9.20-9.25 a.m. and on the same day one Pulser motor cycle has come upon which Rakesh (deceased) and Serman (first informant) were sitting. Later on some fires were made and Rakesh died. Therefore, these are the witnesses who saw the applicant along with other co-accused to stand at the place of occurrence. Therefore, the present applicant was also a member of unlawful assembly and all the members of the unlawful assembly were armed with deadly weapons and in common object of such assembly, he was murdered by them, including the present applicant, by causing fire-arm injury on the dead body of the deceased. In such circumstances, the applicant is also responsible to commit the murder of deceased.

Four assailants have been shown according to the prosecution case including the present applicant and five gun shot wounds of entry were found on the dead body of the deceased as ante-mortem injuries. Therefore, the participation of the present applicant is also established. Ante-mortem injury Nos. 1 and 3 were found gun shot wound of entry. Injury Nos. 2 and 4 were exit wound of these injuries. It is worthwhile to mention here that the country-made pistols, which have been allegedly used in committing the murder, have been discovered on the pointing out of the other accused persons. At this stage, it cannot be presumed that the ante-mortem injury Nos. 1 and 3 could only be caused by rifle and not by the country-made pistol of 315 bore. In the present day, no one could take risk of becoming a witness of heinous crime, like murder while the occurrence had taken place even in his presence. Similarly, the witnesses of locality, namely, Bhagwan, Anil, Vikas Pagoria and Shakir, had not stated anywhere that the miscreants opened fires in his or their presence and so the assailants were not the present applicant and other co-accused persons, nominated in the first information report. These statements are only "Samai Sakshya". These statements cannot discard the statements of eye-witnesses who supported the prosecution case in their statements.

The investigation of the case was transferred to second officer and first parcha was prepared on 23.6.2006. After perusal of Parcha No. 14 of the case diary dated 23.6.2006, it reveals that the Investigating Officer reached at the house of first informant and Shanker Yadav who met him and thereafter their statements were recorded separately. In this parcha, it has not been mentioned that the Investigating Officer obtained the written statements of the first informant and eye-witness Shanker Yadav with their signatures. On the other hand, the statement of first informant was firstly recorded by the first Investigating Officer who supported the prosecution story. Therefore, the contention has no force that the statements of the first informant, other witnesses hit by Section 162, Cr. P.C. as they gave oral statements to the Investigating Officer.

It is worthwhile to mention here that the motor cycle of the deceased was found on the place of occurrence. Similarly, blood stained, simple earth and two bullets were also found at the same place of occurrence. In such circumstances the place of occurrence was not liable to be deemed suspicious. So far the contention of the presence of charring and blackening in the injuries is concerned, unlicensed weapons have allegedly been used . Therefore, it is not liable to be deemed that it were not caused by the fire-arms alleged in the first information report.

So far as the contention of criminal history against the deceased is concerned, there is no dispute on behalf of the prosecution regarding it. However, the present applicant and his associates have got no right to commit the murder of the deceased merely on the basis of criminal history. Every citizen have right to live with freedom and liberty. This is a case of broad day light murder. In such circumstances, it is not expected that the first informant and the eye-witness could falsely implicate the accused persons of the present case by sparing the real culprits. It is also liable to be deemed that the prosecution story cannot be thrown out merely on the basis of exoneration of co-accused Satya Prakash Lal by filing the final report.

After considering the facts and circumstances of the case, I hold that the first information report was lodged promptly and the version of the first information report is corroborated with the post mortem report of the deceased. The present applicant Deepak Yadav is also the member of the unlawful assembly and in prosecution of common object of such assembly; he committed the murder of the deceased by causing fire-arm injury in broad day light while the deceased along with his brother were returning to their home from the market. In view of this, there is force in any argument advanced by the learned Counsel appearing on behalf of the applicant. Therefore, the bail application is liable to be rejected.

Consequently, the bail application is hereby rejected.