Kukku Balmiki alias Member vs State of U.P.

Vinod Prasad, J.—The applicant Kukku Balmiki alias Member has prayed for his release on bail through this present application u/s 439, Cr. P.C. in Crime No. 256 of 2006 u/s 302/34, I.P.C., Police Station Kotwali, district Badaun. His bail prayer has been rejected by the Sessions Judge, Badaun vide his order dated 19.5.2006.

The prosecution allegations against the applicant as perceptible from the F.I.R. lodged by Swadesh Misra on 15.3.2006 at 12.30 p.m. at Police Station Kotwali, district Badaun (Crime No. 256 of 2006) u/s 302/34, I.P.C. are that the brother of informant Mukesh Sharma alias Pappu alias Gola Giri was convicted for life imprisonment in the murder case of Ram Nivas father of Sanjeev Sharma and he was on bail in the appeal filed by him against his said conviction. Motivated by the aforesaid enmity when the aforesaid Mukesh Sharma alias Pappu alias Gola Giri was enjoying the Holi festival on 15.3.2006 at 11.30 a.m. then Sanjeev Sharma aforesaid accompanied by the present applicant Kukku Balmiki alias Member and two other persons surrounded and shot at him as a result of which he sustained injuries and fell down infront on the pedestal of the temple. This shooting spree was witnessed by the informant Swadesh Misra, his father Ramesh Prasad Sharma, Virendra and Brijpal Singh. On challenge being thrown to the accused persons they made their escape good towards north threatening the witnesses to shoot them down in case of chase. It is further alleged that the unknown assailants can be identified in case they are brought before the informant. The incident resulted in a large commotion and people ran hither and thither and closed the doors of their houses. While the injured Mukesh Sharma was being transported to the hospital on a rickshaw, he lost his breath in the way. The post mortem report of the deceased, which was conducted on 15.3.2006 indicates that the deceased had received three fire arm injuries and the same number of exit wounds. With such factual matrix since the applicant was not granted bail by both the courts below, he has filed the present application to be released on bail. One more fact requires to be mention here is that in the aforesaid crime charge-sheet has already been submitted by the Police on 12.4.2006 for offences u/s 302/34, I.P.C. in the Court of C.J.M., Badaun.

I have heard Sri J. S. Sengar, learned Counsel assisted by Sri Ajit Kumar Singh Solanki, advocate, for the applicant in support of this bail application and the learned A.G.A. in opposition.

Sri Sengar, learned Counsel for the applicant contended that in this case post mortem report does not support the time of the incident as the rigor mortis has been found to be present on the corpse which does not tally with the time elapsed between the death of the deceased and the post mortem report. He, therefore, contended that the deceased was done to death much earlier and subsequently the F.I.R. was cooked up. He further contended that the prosecution for the reason best known to it developed its case and later on assigned the role of wielding of a knife by the unknown accused. His submission is that it has been done by the prosecution only to make its case consistent with the post mortem report. He contended that in the F.I.R., two named and two unknown accused had been alleged to have assaulted the deceased but the total number of injuries are only three. The prosecution in its wisdom developed the case that one of the unknown accused did not fire. He submitted that this version of the prosecution is inconsistent with the F.I.R. version, where all the accused persons are said to be armed with firearm and they all have opened fire at the deceased. He further contended that once the named accused person had hired assassins why they will go to the place of the incident and participate in the murder and consequently their participation in the crime is wholly unnatural. He further contended that no blood or colour of Holi festival was found on the spot and, therefore, the place of the incident is not fixed. The total submission of the learned Counsel for the applicant is that the applicant has been falsely implicated in the case. In the last, he submitted that the applicant deserves bail and this bail application should be allowed.

Learned A.G.A., on the other hand, contended that it is a day light incident in which one person has been shot dead in a dare devil manner on the auspicious day of Holi festival in the witnessing of the people of the same locality and witnesses. He further contended that because of the incident there was a total chaos in the locality and the people ran hither and thither. He further contended that in this case, the post mortem report is consistent with the prosecution version. He further submitted that so far as the participation of the applicant is concerned, he is named in the F.I.R. with a positive role of shooting down the deceased. He further submitted that the applicant has a criminal history. He drew the attention of the Court on para 17 of the bail application, where it is mentioned that the applicant is also involved in case under the Arms Act as well as in other offences under Sections 353, 332 and 506, I.P.C.

I have considered the submissions raised by both the sides. The applicant has failed to show any reason for his false implication in this incident. There was no reason for the prosecution to connect him in the incident if he was not present on the spot. It is a day light incident where one person had been shot dead and the F.I.R. of the incident was lodged with promptness within an hour from the time of the incident. The post mortem report is consistent with the prosecution version and so far as the present applicant is concerned, his participation in the crime and the role played by him is consistent and there is no change or diversion made by the prosecution in his respect.

In this view of the matter, I do not find any reason to enlarge the applicant on bail and hence the bail prayer of the applicant is declined and the present bail application is dismissed.