Kabir vs State of U.P

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

The allegations made in the F.I.R. lodged on 27.4.2007 by Sri Santosh Kumar s/o Chhattra Pal Singh at P.S. Sasni, district Hathras (Mahamaya Nagar), at Case Crime No. 233 of 2007, in brief, are that the accused-Shabbir, Zameel, Kabir (applicant herein), Hakim and Sullan committed the murder of deceased Chhattra Pal Singh (father of the complainant) by causing injuries by means of firearm on 27.4.2007 at 7.30 p.m.

The main submission made by learned Counsel for the applicant is that the role of firing has been attributed in the F.I.R. as well as in the statements of the witnesses to five persons, who are named in the F.I.R. and since no specific role has been assigned to the applicant Kabir, hence he should be released on bail on this ground, because it cannot be said that shot fired by him had hit the deceased.

Next submission made by learned Counsel is that in the site plan, place of standing of the accused persons and firing has not been shown.

Further submission made by learned Counsel is that the incident had occurred in the night at about 7.30 p.m. and since there was no source of light, hence there was no occasion for the witnesses to identify the assailants.

It is also submitted by learned Counsel that no independent witness was interrogated by the Investigating Officer during investigation.

It is also submitted by learned Counsel that the applicant is languishing in jail since 1.5.2007 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 all the five persons including the applicant had fired on the deceased, thereby causing injuries to him, due to which he died instantaneously on the spot, and hence, in this heinous crime, the applicant should not be released on bail.

I have given my thoughtful consideration to the aforesaid submissions made by learned Counsel for the parties and carefully gone through the entire case diary and other material on record. There is prima facie evidence to show that all the five persons named in the F.I.R. had fired on the deceased, thereby causing injuries to him. Post mortem report (Annexure-2) shows that as many as four firearm wounds of entry and three exit wounds were found on the person of deceased at the time of post mortem examination. The deceased had died due to shock and haemorrhage as a result of ante-mortem firearm injuries. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, 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: 2008 (3) ACR 3216 (SC),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, Cr. P.C. and avoiding unnecessary adjournments.

S.S.P., Hathras 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 the session trial arising out of Case Crime No. 233 of 2007 of P. S. Sasni (Hathras) 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., Hathras for necessary action.