Ram Gati alias Prem Chandra vs State of U.P.

Vijay Kumar Verma,J.

Prayer for bail in this bail application u/s 439, Code of Criminal Procedure has been made on behalf of the applicant Ram Gati alias Prem Chandra, son of Salwal, in Case Crime No. 178 of 2007, under Sections 452 and 302, I.P.C. and Section 25, Arms Act, P.S. Khalilabad, district Sant Kabir Nagar.

An F.I.R. was lodged on 24.1,2007 at 8.35 p.m. by Ram Shabd, son of Budhi Ram at P.S. Khalilabad, district Sant Kabir Nagar, where a case under Sections 452 and 302, I.P.C. was registered at Case Crime No. 178 of 2007 against Ram Gati alias Prem Chandra (applicant herein), Vijay Kumar, Daya Shanker and Krishna Chandra. The allegations made in the F.I.R., in brief, are that on 24.1.2007 at about 7:15 p.m. the accused persons entered into the house of the complainant and on the exhortation of Daya Shanker, the accused Ram Gati alias Prem Chandra fired on Nirmala, daughter of the complainant, by country-made pistol, due to which she sustained injuries and died on the spot. This incident is said to have been witnessed by the wife and another daughter (Parmila) of the complainant. It is further alleged in the F.I.R. that on hearing the sound of fire, Surendra, Seenan, Babu Lal and other village people having lathis, danda and torches rushed towards the house of the complainant and challenged the accused persons, on which they fled away towards their houses.

I have heard lengthy arguments of Sri. Satish Trivedi, learned senior counsel, assisted by Sri. Ajay Kumar Pandey, advocate, appearing for the applicant, Sri. Pramod Kumar Singh, advocate, holding brief of Sri. Tripathi.B.G.Bhai, counsel of the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that the incident of committing the murder of deceased Nirmala had taken place in the night and no body had seen the incident, because according to the F.I.R. itself, Parmila, another daughter of the complainant, was taking water from hand pump situated outside the house and wife of the complainant also had reached after hearing the sound of fire.

Next submission made by learned Counsel was that it is a case of hit and run, as only one firearm injury was found on the person of deceased at the time of post-mortem examination, and since it was a night incident and there was no source of light, hence there was no occasion for the witnesses to identify the assailants.

It was further submitted by learned Counsel for the applicant that wife of the complainant has not been examined in trial court and she has been discharged and since Parmila, another daughter of the complainant, had not witnessed the incident of committing the murder of her sister Nirmala, hence the applicant is entitled to be released on bail now, because there is no evidence against the applicant to show his complicity in the alleged incident.

It was also submitted by learned Counsel for the applicant that in the F.I.R., the co-accused Daya Shanker is said to have exhorted the accused persons, on which the applicant is alleged to have fired on the deceased, but story has been changed during investigation and role of hatching the conspiracy has been attributed to the co-accused Daya Shanker and hence on this ground also, the applicant deserves bail, as the case of the prosecution has been materially changed during investigation.

It was further submitted by learned Counsel for the applicant that the incident appears to have taken place in the night after 10 p.m. as semi-digested food was found in the stomach of deceased at the time of post-mortem examination, which indicates that the incident had not occurred at the time mentioned in the F.I.R.

Drawing my attention towards ante-mortem injury noted in the post-mortem report, it was submitted by learned Counsel for the applicant that this injury is not possible to be caused by country-made pistol, whereas country-made pistol is alleged to have been recovered on the pointing out of the applicant during investigation.

It was also submitted by learned Counsel that the applicant is languishing in jail since 3.10.2007 and hence on the basis of long incarceration in jail, he is entitled to be released on bail now, because 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 shooting the deceased has been attributed to the applicant Ram Gati and hence in this heinous crime of committing murder, the applicant should not be enlarged on bail, because without any lawful excuse, he has taken away the life of an innocent girl.

I have carefully gone through the entire case diary and other material on record. There is sufficient prima facie evidence to show the complicity of the applicant in the incident of committing murder of deceased Nirmala. Specific role of firing on the deceased has been attributed to the applicant, which is fully corroborated from the statements of the witnesses recorded during investigation. The post-mortem report (Annexure-2) shows that ante-mortem firearm wound of entry having its corresponding exit wound was found on the person of deceased at the time of post-mortem examination, as a result of which the deceased had died instantaneously. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, in this heinous crime of committing the murder of an innocent girl 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 positively making sincere efforts and applying the provisions of Section 309, Code of Criminal Procedure.

S.S.P., Sant Kabir Nagar is also directed to depute special messenger to procure the attendance of rest witnesses after obtaining their summons from the Court concerned and it must be ensured that all the rest 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., Sant Kabir Nagar for necessary action.