Pappu vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this application u/s 439, Code of Criminal Procedure has been made on behalf of the applicant Pappu son of Jamuna Singh, in Case Crime No. 868 of 2008, under Sections 302 and 201, I.P.C., P.S. Sahswan, district Budaun.

An F.I.R. was lodged by Meelal son of Ram Lal at P.S. Kotwali, Sahaswan, district Budaun, where a case under Sections 302 and 201, I.P.C. was registered against 1. Hardan, 2. Pappu (applicant herein), 3. Harpal and 4. Ram Das. The allegations made in the F.I.R., in brief, are that Ved Ram, younger brother of the complainant Meelal had gone to graze the cattle on 26.8.2008 at about 10 a.m. in jungle. At about 6.30 p.m., Rajendra son of Ram Das and Veerpal son of Siyaram came to village and told the complainant that at about 4 p.m., Hardan and Pappu, both sons of Jamuna Singh, Harpal son of Pimmi and Ram Das, son of Rameshwar came in the jungle having country-made pistols in their hands and fired on Ved Ram and when he fell down on the earth, they carried him towards Sota (nala). On getting this information, search of Ved Ram was made by the complainant and other persons, but due to darkness, he could not be traced out in the night and when on 27.8.2008, search was being made by the complainant and other village people, the dead body of Ved Ram was found lying in bushes near the nala in the jungle of village Vairpur Manpur. Some parts of the dead body were eaten by wild animals. Leaving the dead body on the place of incident, the complainant went to the police station and lodged the F.I.R.

I have heard lengthy arguments of Shri U.C. Mishra, advocate, appearing on behalf of the applicant, Shri Pankaj Satsangi, advocate, representing the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that although information about causing injuries to the deceased by the accused persons had been given to the complainant on 26.8.2008 at about 6.30 p.m., but no F.I.R. was lodged on that day and after recovery of the dead body, F.I.R. was lodged on 27.8.2008 at 4 p.m., and since no satisfactory explanation has been furnished by the prosecution about delay in lodging the F.I.R. hence the case of the prosecution becomes doubtful and the applicant is entitled to be released on bail on this ground.

Next submission made by learned Counsel was that out of two alleged eye-witnesses, the witness Rajendra has filed his affidavit before the C.J.M., Budaun, in which he has not named the applicant and hence on this ground also, the applicant deserves bail, because after excluding the statement of this witness, the only incriminating evidence against the applicant remains the statement of another alleged eye-witness Veer Pal, which is not sufficient to establish the complicity of the applicant in the alleged incident of committing murder of deceased Ved Ram.

Drawing my attention towards site plan (Annexure-RA-1 to the rejoinder-affidavit dated 18.8.2009), it was submitted by learned Counsel that distance of the place of causing injuries to the deceased and recovery of dead body has not been shown in the site plan, but it appears that the dead body was not lying at much distance from the place where deceased was injured and hence the dead body could be easily traced out in the night, but the dead body was shown to have been recovered on the next day, i.e., 27.8.2008 and hence on this ground, the story of the prosecution is doubtful and it appears that after recovery of the dead body on 27.8.2008, the story mentioned in the F.I.R. was concocted and the applicant has been falsely implicated in this case.

It was also submitted by learned Counsel for the applicant that maggots were present on the person of deceased at the time of post mortem examination, and hence the time of incident as mentioned in the F.I.R. is falsified. It was submitted by learned Counsel in this context that post mortem examination on the dead body of deceased was conducted on 28.8.2008 at 2 p.m., and since according to the post mortem report (Annexure-3), the time of death at the time of post mortem examination was found 48-72 hours ago, hence the story of committing the murder of deceased on 26.8.2008 at about 4 p.m. or thereafter becomes false.

It was further submitted by learned Counsel that the applicant is languishing in jail since 26.9.2008 and hence on the basis of long incarceration in jail, he is entitled to be released on bail, 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 was vehemently opposed by learned Counsel for the complainant and A.G.A. contending that specific role of firing on the deceased has been attributed to the applicant and other accused named in the F.I.R. and hence in this heinous crime of day light murder, the applicant should not be released on bail.

About filing the affidavit by the witness Rajendra in the Court of C.J.M., Budaun, it was submitted by learned Counsel for the complainant that statement of this witness was recorded by the Investigating Officer after registration of the F.I.R. and in that statement, he had fully supported the case of the prosecution, but due to terror of the accused persons, he filed affidavit in the Court of C.J.M., Budaun after more than two and half months and hence on this ground alone, the bail application of the applicant should be rejected, because the accused persons, who are creating terror and compelling the witnesses to file affidavit, being lodged in jail, would certainly tamper with the evidence by intimidating the witnesses after coming out from jail, if bailed out.

Regarding the time of death, it was submitted by learned Counsel for the complainant that at this stage, on the basis of the findings recorded in the post mortem report, no definite opinion can be formed and it cannot be said that the time of incident as mentioned in the F.I.R. is false, because this matter can be finally decided by the trial Court on the basis of the evidence to be led by the prosecution. It was also submitted by learned A.G.A. in this context that incident of committing the murder of deceased had taken place in the month of August and there was possibility of availability of maggots in the dead body at the time of post mortem examination due to hot season.

I have carefully gone through the case diary and other material on record. Both the eye-witnesses namely, Rajendra and Veerpal have fully supported the case of the prosecution in their statements recorded u/s 161, Code of Criminal Procedure The affidavit (Annexure-2) by the witness Rajendra was filed in the Court of C.J.M., Budaun after more than two and half months of the incident. The post mortem report shows that ante-mortem firearm injuries were found on the person of the deceased at the time of post mortem examination. Therefore, having regard to all these facts and keeping in view the aforesaid submissions made by learned Counsel for the parties, but without expressing any opinion about merit of the case, in this heinous crime of day light murder of an innocent person without any lawful excuse, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In this context, 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 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 and other accused persons within a period of six months making sincere efforts and applying the provisions of Section 309, Code of Criminal Procedure.

S.S.P., Budaun is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the Court concerned and it must be ensured that witnesses are produced in the session trial arising out of aforesaid case 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., Budaun for necessary action.