Rama Kant Yadav vs The State of U.P.

B.N. Shukla, J.—Heard Sri V.P. Srivastava and Sri Satish Trivedi learned Senior Counsel for the applicant, Sri SFA Naqvi, S.K. Singh, S.K. Shukla, Saurabh Gour, V.S. Misra learned Counsel for the complainant and Sri Mewa Lal Shukla, learned AGA for the State.

It is contended by the learned Counsel for the applicant that there was no motive to commit murder and it appears impossible and unnatural that the applicant will shoot without rhyme and reason; that in the FIR name of the deceased and the injured have not been disclosed and in FIR the applicant is sole accused and the FIR is concentrating at the accused applicant and why the applicant will fire when there was no provocation as per FIR; that the complainant always involved in ante social activities as is shown in supplementary affidavit dated 27.10.2009 pages 18 and 19; that the document shows that Abdul Rehman (the deceased) was admitted at injured state in District Hospital at 2:45pm and he had not died and when he was referred to B.H.U. hospital then the doctor declared him brought dead but record shows that his body was found in mortuary at Azamgarh at 6:45pm; inquest report shows that the FIR was not in existence till then and informant''s name is missing therein upto 6:05pm, that the injured Mohd Saheed was examined at C.H.C. Phoolpur at 2:50pm and was brought by one Mauzam; injured Mohd Zaheed was examined at C.H.C. Phoolpur at 3:00 pm and injured Mohd. Mushtaq at 3:10 pm and brought by self whereas it is prosecution case that the injured were examined at District Hospital at 7:10pm brought by Abdul Rehman stranger and genesis of the case is concealed by the prosecution. It is further contended that Saheb, Jhinak and Radhey Shyam were examined at C.H.C. Phoolpur at 8:30 pm, 6:30pm and 3:30pm respectively brought by self and how these persons were medical examined there is no whisper by the prosecution; that nature of the injury of the deceased shows sufficient dispersal which could by country made pistol and not by casual gun and there is sufficient improvement in case; that the medical evidence is inconsistent with the FIR.

Learned AGA has contended that no injury has been found on the backside and the fire was shot by regular gun having pellet injuries, that the applicant has criminal history of 37 cases and the applicant and his brother Umakant are involved in several murder cases and the applicant has criminal history from year 1977, that in the FIR it is not mentioned how many fires were shot at and in inquest report there is mention of FIR in annexure; that presence of injured witnesses could not be doubted and the FIR is prompt; that it is broad day light murder and the applicant is named in FIR, the deceased had received fire arm injuries and the applicant had been MLA and MP several times and still he is sitting MP but he is breaking law and order.

Learned private Counsel from the side of complainant has contended that there was no occasion to falsely implicated the applicant and the complainant does not belongs to any political party; that conduct of the applicant shows that he was declared as an absconder in year 1987 and his case was separated whereas case against other accused persons was decided and appeal is now pending and after release the applicant had committed murder of 4 persons and bail cancellation application is still pending, that the trial is pending and 2 prosecution witnesses have already been examined and the applicant is causing delay in proceedings. Lastly it is contended that Criminal Misc. Writ Petition No. 22519 of 2009 is still pending and as per ruling of the Apex Court the applicant would not be entitled for bail.

In reply learned Counsel for the applicant have submitted that except one case the applicant has been acquitted in other cases and the complainant himself had contested last election and was defeated.

Learned Counsel for the parties have filed and exchanged affidavits, counter affidavits, supplementary affidavits and supplementary counter affidavit in support of their assertion. From the complainant''s side the catene of decisions of the Hon''ble Apex Court has been filed which are as under:

(i) State Vs. Amarmani Tripathi,

(ii) Ram Pratap Yadav Vs. Mitra Sen Yadav and Another,

(iii) Crl. Misc. Bail Application No. 21862 of 2008 (Jamuna Nishad v. State of U.P.) (unreported decision) decided on 9.9.2009 Page Nos. 15 and 16;

(iv) Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another,

(v) Ram Govind Upadhyay Vs. Sudarshan Singh and Others,

(vi) Prahalad Bhati v. N.C.T. Delhi (Para-8) Page Nos. 36-41;

(vii) Chand Khan and another Vs. State of Uttar Pradesh,

(viii) Dhanaj Singh @ Shera and Others Vs. State of Punjab,

(ix) (2004) 13 SCC 308 State of M.P. v. Dharkola alias Govind Singh (Paras 10, 12, 14 and 15) Pages 58-64;

(x) Amar Singh Vs. Balwinder Singh and Others,

(xi) Alamgir Vs. State (NCT, Delhi),

Learned Counsel for the applicant have filed judgment of this Court given in Case Pawan Kumar Pandey v. State of U.P. (2007) (1) JIC 680 Alld. in order to show that if accused otherwise entitled to bail, the same should not be refused simply on the ground of his criminal antecedents.

It is prosecution case that on 12.8.2009 at 1:45pm Sri Amir Rashdi, President of Rashtriya Ulemma Council was going to attend a meeting at Kasba Phoolpur from Azamgarh. The workers of the Ulemma Council assembled near Jagdishpur to receive Sri Rashdi. From behind the applicant with his supporters came on vehicle and asked for the pass and after passing ahead he stopped the vehicle and fired shots from his gun which hit the workers and one of them died and three received fatal injuries. This FIR was lodged on same day at 16:30 hours at Police Station Phoolpur District Azamgarh.

Before meticulously examining the documents and allegations made against the applicant, it would be better to have a glimpse at the antecedents of the informant and the applicant. Learned Counsel for the parties have blamed each other by alleging their involvement in anti-social and criminal activities. They have supplied criminal history of the applicant and list of cases against the Informant obtained through R.T.I. Act. It would be better to adopt the same in verbatim as Appendix 1 & 2.

Going through Appendix 1 & 2 the Court comes to the conclusion that blame put against each other could not be shared. They are liable for their own act and detail scrutiny and discussion is uncalled for. After year 1998 the applicant was not found involved in any heinous offence except the present case. The Court can look the two characters "through the looking Glass" by Lewis Carroll and it reminds Tweedle-dum and Tweedle-dee.

As per FIR version when workers of the Ulemma Council assembled near Jagdishpur then the applicant''s vehicles came from behind and asked for pass and after passing ahead stopped the vehicle on road and fired shots. Is it the real story? The investigating Officer has recorded statement of injured and other witnesses namely Kamal, Farhan Akhtar, Noor Alam, Jaheed, Mohd. Tariq, Mohd. Hameed, Abdul Kalam, Nurul Hoda and Mohd. Ahmad. They gave statement otherwise. It appears from their statements recorded u/s 161 Cr.P.C. that after getting pass the 3 vehicles convoy of the applicant moved ahead peacefully and even the informant''s vehicle was not disturbed and when convoy passes 40-50 meters ahead then driver of the first vehicle of the applicant''s convoy applied emergency brake in order to avoid accident of group of motorcycles of Ulemma Council on the road as a result of which all three vehicles of the applicant collided with each other. The applicant''s vehicle sandwiched in between the two thereafter the applicant came out side his vehicle from left side and then fired 10-12 shots. Imagine the road plight at that time. Even in site-plan prepared by the Investigating Officer vehicles of the applicant were shown passing on the road through extreme right due to blocking of two-third portion of road by the Ulemma Council supporters motorcyclists. One can notice how the participants in political, religion and other procession behave on the road. They cover entire road disobeying the traffic rules treating the road as own property and the law and order enforcing machinery look askance and moot spectator on that occasion. Sudden applying of brake by the driver resulting collusion of three vehicles of the applicant prima facie reveals that the applicant never intended to cause harm to any one but collision could suddenly provoke anyone at that moment.

Entire prosecution story concentrate against the applicant but it appears from statement of witnesses Hameed, Abdul Kalam and Nurulhoda that 4 supports of the applicant had also fired shots and even they have been named but no action has been taken against them.

In FIR it is mentioned that the applicant came out from vehicle and fired shots which hit 4 persons out of whom one died and three received serious injuries. In post-mortem report of the deceased Abdul Rehman ante-mortem injuries have been shown which is not on backside. Prosecution has changed version and introduced this theory that the applicant thrashed the motorcyclist by leg and when riders fell down then fires were shot by the applicant. There is evidence that at the time of occurrence the crowd of Ulemma supports were slowly moving towards Phoolpur and convoy of applicant''s vehicle came from behind.

Whether it is case of single shot with dispersal as alleged by the learned Counsel for the applicant or 10-12 fire shots as alleged by the prosecution, is yet to be decided by the trial court but it is prima facie clear that the applicant had no motive to kill the deceased or inflict injuries to the injured persons and he bore no previous enmity with them. Injuries of three injured persons could not be fatal. Abdul Rehman succumbed to injuries enroute to Varanasi and he was given treatment at Azamgarh before being referred to B.H.U.

S.I. Jawahar Lal of Police Station Phoolpur had also lodged an FIR on 12.8.2009 relating to occurrence happened at 1:45pm in Kasba Phoolpur which is against workers of Ulemma Council and it is mentioned therein that mob became unruly and violent.

Trial is pending. It is informed that two prosecution witnesses have been examined in the court hence detail discussion or documentation is uncalled for at this stage but the incident in the present case is to be assessed keeping in view the melee and milieu.

In State of Maharashtra Etc. Vs. Dhanendra Shriram Bhurle Etc., the Hon''ble Apex Court has given guideline to the courts while dealing with application for bail. The factum required to be considered before granting bail are (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tempering of the witnesses or apprehension of threat to the complainant; (c) prima facie satisfaction in the court in support of the charge. It is also mentioned that at the stage of granting bail detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, three is need to indicate in such orders reason for prima facie concluding why bail was being granted particularly when the accused is charged of having committed a serious offence.

Ruling cited from side of the informant as referred above are based on fact of particular case and in these cases there were motive on the part of the accused to commit crime and crimes were committed in planned way but qua present case, there were no motive and planning and fact of the case prima facie reveals sudden provocation and mis-happening with no intention.

Criminal antecedent of the applicant would not be a ground to refuse bail to the applicant when he is otherwise entitled to bail. In democratic set up one can see that even hardcore and outlawed became politicians by garnering public support and even some achieved pinnacle or Robinhood status. The court is not sympathetic with the applicant but considering entire accusation against the applicant and also keeping in mind the fact the complainant and one more witness have been examined in the court and chance of tempering the witness is slender, the applicant who is in jail since 25.8.2009 is entitled to be released on bail during trial period but with certain rider.

Bail application is allowed. Let the applicant Ramakant Yadav involved in Case Crime No. 622 of 2009 under Sections 302, 307 IPC Police Station Phoolpur, District Azamgarh be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:

(a) After release he shall not organise any road show, procession or involve in such activities which may disturb the public tranquillity or create law and order problem or disturb communal harmony;

(b) He shall regularly attend the court proceeding and cooperate with the trial court in early conclusion of the trial;

(c) He shall appear in court like commoner with minimal security provided to him under rules;

(d) He shall not temper with the witnesses;

(e) He shall not involve in any criminal activities and will not be instrumental in disturbing communal harmony.

In case of breach of any conditions, the trial court will have full liberty to take steps to send the applicant to jail again under intimation to this Court.

Identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted.

It is made clear that any observation of this Court will not effect the trial court decision and observation would confine only up to considering the bail application.