Dhama Gond vs State of U.P.

Vijay Kumar Verma, J.—Heard Sri. Sudist, advocate, appearing for the applicant and A.G.A. for the State.

The allegations made in the F.I.R. lodged on 12.12.2007 at 6.10 p.m. by Sri. Ram Lal, S/o Dev Nandan at P.S. Saidpur, district Ghazipur, at Case Crime No. 1334 of 2007, u/s 302, I.P.C., Section 7, Criminal Law (Amendment) Act and Section 3(2)(v), S.C./S.T. Act, in brief, are that the accused Dhama Gond (applicant herein) and co-accused Karan Veer Singh alias Sanni committed the murder of deceased Biju Patnayak, son-in-law of the complainant, on 12.12.2007 at 4.30 p.m. by causing injuries by means of firearms.

The first and foremost submission made by learned Counsel for the applicant is that there was no motive for the applicant to cause the death of the deceased and he has been falsely roped in this case due to enmity.

Next submission made by learned Counsel is that the co-accused Karan Veer Singh has been granted bail and on the basis of the principle of parity, the applicant also deserves bail, as role of both the accused is identical.

Further submission made by learned Counsel is that the story as mentioned in the F.I.R., cannot be believed, as after catching hold the deceased by two unknown persons, firing cannot be made on him.

It is also submitted by learned Counsel that the applicant is languishing in jail since 18.12.2007 and hence, on the basis of long detention period in jail, he deserves bail now, as due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application has been vehemently opposed by learned A.G.A. contending that specific role of firing on the deceased has been attributed to the applicant Dhama Gond also in addition to the co-accused Karan Veer Singh and hence, in this heinous crime, the applicant should not be released on bail.

On the matter of granting bail on the basis of the principle of parity, it is submitted by learned A.G.A. that co-accused Karan Veer Singh was juvenile and hence on the basis of the bail order of the co-accused, the applicant cannot be released on bail. Further submission in this context is that parity otherwise also is not the sole ground for bail, as held by this Court in Shahnawaz alias Shanu v. State of U.P. (LXVI)2009 ACC 189 : 2009 (3) ACR 3260.

I have given my thoughtful consideration to the aforesaid submissions made by learned Counsel and carefully gone through the entire case diary and other material on record. There is prima facie evidence to show that the applicant Dhama Gond has also fired on the deceased alongwith co-accused Karan Veer Singh. Post-mortem report (Annexure-2) shows that there were ante mortem firearm injuries which were caused by firearms and the deceased had died due to coma as a result of ante mortem firearm injuries. The incident had occurred in day light and there was no question of mistaken identity. Therefore, having regard to all these facts and other circumstances of the case, but without expressing any opinion on merit, in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail.

In my considered opinion, the applicants cannot be admitted to bail on the basis of the period of detention in jail also. In this regard, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. (LXIII)2008 ACC 115, in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail application is hereby rejected.

The trial Court concerned is directed to conclude the trial of the applicant within a period of six months applying the provisions of Section 309, Code of Criminal Procedure and avoiding unnecessary adjournments.

S.S.P., Ghazipur also is directed to depute special messenger to procure the attendance of witnesses after obtaining their summons from the Court concerned and it must be ensured that all the witnesses are produced for evidence in S.T. No. 133 of 2008, arising out of Case Crime No. 1334 of 2007 of P.S. Saidpur (Ghazipur) without causing any delay.

The Office is directed to send a copy of this order within a week to the trial Court concerned and S.S.P., Ghazipur for necessary action.