Jai Prakash alias Pintoo vs State of U.P.

Vinod Prasad, J.—Jai Prakash alias Pintoo has filed this bail application in this Court for his release on bail in Crime No. 205 of 2005 under Sections 302 and 120B, I.P.C. P.S. Civil Lines, district Allahabad (Now S.T. No. 97 of 2006 pending before Additional Sessions Judge, Court No. 15, district Allahabad.

The prosecution case against the applicant in brief is that the informant Rakesh Kumar Singh is a resident of 255A Malak Raj, Ram Bagh, P.S. Keed Ganj, district Allahabad. On 20.9.2005 at 8.30 p.m. while he was with his friend Mahesh Yadav r/o 18/20 Tashkand Margh, P.S. Civil Lines Allahabad, Mahesh Yadav aforesaid received a telephone call that his brother Suresh Singh Yadav has been shot at infront of the house of Wilson Kapoor, situated at 10/24 Sardar Patel Marg, Allahabad. The informant alongwith Mahesh Yadav rushed to the place of incident and found his brother Suresh Singh Yadav lying in a pool of blood at the alleged spot. On inquiry being made Dheeraj s/o Munni Lal and Deepu s/o unknown informed them that they had arrived at the place of occurrence alongwith Suresh Singh Yadav and after some merry making when they were returning back then Ganesh Yadav s/o Buddhan Yadav alongwith one of his companion Dheeraj Mehtar s/o Mooley had shot at Suresh Singh Yadav and had escaped. Suresh Singh Yadav was injured in the neck by the said shot. He was taken to the Swaroop Rani Hospital Allahabad and thereafter to Priti Hospital for treatment but finding his condition serious, he was carried to Lucknow by his brother Mahesh Yadav aforesaid in an ambulance. With the said allegation Rakesh Kumar Singh informant scribed the F.I.R. and lodged it at P.S. Civil Lines, district Allahabad. His F.I.R. was registered as Crime No. 205 of 2005 u/s 307, I.P.C. The police commenced the investigation and during the course of it the Investigating Officer went to Lucknow and recorded the statement of the deceased u/s 161, Cr. P.C. after a gap of tour days from the date of the incident. Meanwhile the injured was operated upon by the doctor for treatment of his injury. It is also the prosecution case that the deceased in his own handwriting had written a note that it was the present applicant who had shot him and had handed it over to his brother Mahesh Yadav. Further the prosecution case is that the subsequent investigation revealed that Ganesh Yadav and Dheeraj Mehtar were wrongly nominated in the case and in fact the real culprits were the present applicant alongwith Munna Yadav and Ashish Jaiswal alias Natey. The prosecution case further is that deceased was a practising advocate and was registered with U.P. Bar Council having Registration No. 1370/08. The injured Suresh Singh Yadav at last scummbed to his injuries and died on 13.10.2005 at 6 a.m. His post mortem report reveals that he had sustained gun shot injuries. Further the prosecution case is that the Investigating Officer found prima facie case against the present applicant and submitted a charge-sheet in the Court and now prosecution evidence is being led in the said trial as S.T. No. 97/2006 pending before Additional Sessions Judge, Court No. 15, Allahabad and two witnesses have already been examined in the case. On the said factual matrix, as stated above, the applicant has prayed for his release on bail.

I have heard Sri J. S. Sengar, advocate assisted by Sri Ajeet Kumar Singh Solanki, learned Counsel for the applicant as well as Sri Raghavendra Dwevedi, learned Counsel for the informant and learned A.G.A. in opposition.

In support of this bail application Sri J. S. Sengar contended that the applicant is not named in the F.I.R., wherein two other persons were named and the complicity of those two named accused persons Dheeraj and Deepu have been found to be false. He further contended that after receiving the injury the deceased went into coma and never regained consciousness till he survived and therefore the alleged statement u/s 161, Cr. P.C. of the deceased as well as alleged note alleged to be scribed by him are manufactured pieces of evidences and cannot be accepted. He further submitted that according to the prosecution case statement of the deceased u/s 161, Cr. P.C. was recorded subsequent to the alleged note by him but the deceased has not mentioned about the said note in his statement u/s 161, Cr. P.C. He further argued that the alleged note is from various pens and in different ink and cannot be accepted to have been written by the deceased. He further submitted that the deceased was in coma through out till his last breath. He submitted that there is no eyewitness account of the incident implicating the applicant and the evidences against him are the alleged note and statement u/s 161, Cr. P.C., which are manufactured and cooked up evidences. He further submitted that there is no report of Trauma Centre that the deceased was conscious at the time of his admission there.

Learned A.G.A. and learned Counsel for the informant refuting the submissions made by the learned Counsel for the applicant contended that in this case the Investigating Officer has recorded the statement of the deceased after he was operated upon after a gap of four days. They further contended that the Investigating Officer has mentioned in the case diary that before recording the statement of the deceased u/s 161, Cr. P.C., he had sought the permission of the concerned doctor and the deceased gave his statement in 45 minutes. They further contended that there was illicit relation between the applicant and niece of the deceased, which was objected to by the deceased motivated by which the deceased was murdered. They further argued that the deceased was a practising advocate and it is wrong to say that he was in coma through out. They further contended that there is no reason for false implication of the present applicant who was a hired assassin. Learned A.G.A. also contended that conduct of the applicant is such that he does not deserve to be released on bail. He pointed out that on 23.9 2005 the applicant was called at the Police Station for interrogation and interregnum interrogation on the pretext to attend the call of nature, he absconded and was subsequently apprehended on 25.9.2005. Learned A.G.A. contended that if the applicant will be released on bail he will again abscond and will not allow the trial to proceed. He further argued that since the trial is in progress and two witnesses had already been examined in the case hence the trial may be expedited as the applicant does not deserve to be released on bail and his prayer should be refused.

Learned Counsel for the applicant in his rejoinder address contended that the Investigating Officer even though mentioned that he had taken permission of the doctor before recording of the statement of the deceased u/s 161, Cr. P.C. but had not appended the said certificate in the case diary nor he has examined the deceased in question-answer form though he was infact recording his dying declaration.

I have considered the contentions raised by both sides.

It is a case of circumstantial evidence, where the evidence of deceased is the only direct evidence available with the prosecution. His statement u/s 161, Cr. P.C. has been recorded by the Investigating Officer after seeking permission from the doctor. In the said statement the deceased has clearly mentioned that the present applicant was the main shooter. The prosecution must get a chance to substantiate the truthful recording of the said statement of the deceased by the Investigating Officer and the doctor who has issued the certificate of fitness for recording the dying declaration during the trial by examining them as witnesses. At this stage the aforesaid statement of the deceased alleged to have been recorded by the Investigating Officer is in the nature of his dying declaration. The said statement is also coupled with Ins aforesaid note wherein he has specified that it was the applicant who had shot at him. There does not seem any reason for false implication of the applicant if he was not the real shooter. A dying man in the agony of pain and anguish normally does not implicate an innocent falsely. The deceased before the incident has not done any thing against the applicant and vice-versa and hence it is different to perceive that the deceased in that trauma and anguish will falsely implicate an innocent. Nothing tangible has been brought on the record of this case by the applicant to show that the deceased mustered such a grudge against him that even in the last days of his life he will spare the real assailant to implicate the applicant. For all these reasons, I do not find any ground to release the applicant on bail.

The bail prayer is declined and this bail application is rejected at this stage.

Record of the trial court, which has been received by this Court under the order passed by me, is directed to be detached from this bail application and office of this Court is directed to transmit it back to the trial court in a sealed cover, through special messenger today itself.