Rajesh Singh and Others vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this bail application u/s 439 of the Code of Criminal Procedure (in short ''the Cr.P.C.'') has been made on behalf of applicants Rajesh Kumar s/o Badan Singh Yadav (applicant herein), Narendra Singh s/o Rajesh Singh and Kallu s/o Swami Sharan, in Crime No. 84 of 2008, under Sections 302 and 308, I.P.C., P.S. Saifai, district Etawah.

An F.I.R. was lodged on 5.8.2008 at 3.20 a.m., by Jagdish Singh Yadav, s/o Shivraj Singh Yadav, at P.S. Saifai, district Etawah, where a case under Sections 302 and 308, I.P.C. was registered at Crime No. 84 of 2008 against Rajesh Singh, Ravindra Singh, Narendra Singh and Kallu. The allegations made in the F.I.R. (Annexure-1), in brief, are that in the intervening night of 4/5.8.2008, when the complainant and his father Shiv Raj Singh Yadav were sleeping on their tube-well arid Brijesh Singh, S/o Lakhan Singh as well as Dinesh, Suresh and Guru Prasad also were sleeping there, the accused Rajesh Singh, Ravindra Singh, Narendra Singh and Kallu at about 2.00 a.m. came there having lathi, danda and bhala. Further case of the prosecution is that the accused Ravindra Singh gave blows by bhala to Shiv Raj Singh, father of the complainant and other accused also caused marpeet with him by means of lathi, danda and axe, due to which he died instantaneously. Injuries were caused to Brijesh Singh also. This incident is said to have been witnessed in torch light by the complainant Jagdish, Dinesh Singh, Suresh Singh and Guru Prasad.

I have heard arguments at length of Sri. G.P. Dikshit, advocate, appearing for the applicants, Sri. Rahul Mishra, advocate, holding brief of Sri. Rajiv Lochan Shukla Counsel for the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicants was that in the inquest report (Annexure-4), there is no mention of axe, hence on this ground the applicant Kallu is entitled to be released on bail, because according to the statements of witnesses, he is alleged to have caused injuries to the deceased by means of axe, whereas in the inquest report, there is no mention of axe. On this point, it was submitted by learned Counsel for the complainant that mentioning the name of the accused and weapons carried by them in inquest report, is not the requirement of law and hence due to omission to make averment about use of axe in the inquest report, the applicant Kallu should not be released on bail, because injuries by axe were caused by him to the deceased.

Next submission made by learned Counsel was that although specific role of co-accused Ravindra Singh for causing injuries by means of bhala to the deceased has been attributed in the F.I.R., but no specific role has been assigned to the applicants in the F.I.R. and hence on this ground, the applicants deserve bail.

It was also submitted by learned Counsel that no injury was caused to the injured Brijesh by means of bhala or axe and hence on this ground also, the applicant Kallu should be released on bail, because specific averment about causing injuries by axe by the applicant Kallu has not been mentioned in the F.I.R.

Further submission made by learned Counsel was that the incident had occurred in the night at about 2.00 a.m. and since there was no source of light, hence there was no occasion for the witnesses to identify the assailants.

It was also submitted by learned Counsel that the applicants are languishing in jail for more than a year and hence, on the basis of long detention period in jail, they deserve bail now, as due to delay in trial, their fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application was vehemently opposed by the learned Counsel for the complainant and A.G.A. contending that all the three applicants had actively participated in the incident and they had caused injuries to the deceased as well as injured Brijesh and hence, in this heinous crime, the applicants 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 material on record. Brijesh Singh is the main witness, who also had sustained injuries in the alleged incident. Annexure-1 to the supplementary-affidavit, dated 9.2.2009, is the copy of the statement of Brijesh Singh recorded u/s 161, Code of Criminal Procedure. He has fully supported the case of prosecution and from his statement, this fact is borne out that the accused Rajesh Singh and Narendra Singh had caused injuries to him as well as to the deceased Shiv Raj Singh by means of lathis and the accused Kallu had given blows by axe to the deceased. Other eye-witness also have supported the case of prosecution in their statements recorded u/s 161, Code of Criminal Procedure. Annexure-2 is the copy of post-mortem report of the dead body of deceased Shiv Raj Singh, which shows that in addition to incised wounds, which may be caused by axe, other ante mortem injuries, which are likely be caused by lathis and bhala, were also found on the person of deceased at the time of post-mortem examination. Annexure-3 is the copy of the medical report of Brijesh, which shows that injuries, likely to be caused by lathis were found on his person at the time of his medical examination. I entirely agree with the submission of the learned Counsel for the complainant that mentioning the names of the accused and weapons in inquest report is not the requirement of law, as held by Division Bench of this Court in Ganesh Yadav and Ors. v. State of U.P. (LXV)2009 ACC 892 : 2009 (2) ACR 2217, in which reference has been made to certain decisions of Hon''ble Apex Court. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, in this heinous crime of taking the life of an innocent person without any lawful excuse and causing injuries to other person, the applicants do not deserve bail, because their active participation in the incident by causing injuries to the deceased and injured has been prima facie established on the basis of the statements of injured Brijesh and other eye-witness.

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 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 applicants within a period of six months applying the provisions of Section 309, Code of Criminal Procedure and avoiding unnecessary adjournments.

S.S.P., Etawah 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. 84 of 2008 of P.S. Saifai (Etawah) 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., Etawah for necessary action.