Yogendra vs State of U.P.

Ravindra Singh, J.—Heard Sri. V.P. Srivastava, learned senior advocate assisted by Sri. Gaurav Kakkar, learned Counsel for the applicant, learned A.G.A. for the State of U.P. and Sri. Viresh Mishra, senior advocate, assisted by Sri. Amit Misra, learned Counsel for the complainant and perused the record.

This bail application has been filed by the applicant Yogendra with a prayer that he may be released on bail in Case Crime No. 70 of 2009, under Sections 302 and 307, I.P.C., P.S. Binauli, district Baghpat.

The facts, in brief, of this case are that a telephonic message was given to police station Binauli on 7.3.2009 at about 4 a.m. by unknown person that gun shot injury was caused on the person of Ghanshyam Sharma and others, on that information, the officer-in-charge of police station Binauli proceeded towards the place of occurrence, the detailed F.I.R. of this case has been lodged by Jagpal Sharma on 7.3.2009 at 5.30 a.m. in respect of the incident which had occurred on 7.3.2009 at about 2.30 a.m., the distance of the police station was about 4 kms., the applicant, co-accused Ghanshyam, co-accused Rajendra, co-accused Jai Prakash are named in the F.I.R. as accused. It is alleged that co-accused Ghanshyam Sharma, caused injury on the person of the Mangey Ram and others. In the night of 6/7.3.2009 at about 1 a.m., co-accused Ghanshyam gave a telephonic message on a mobile phone to Jaiveer, the brother of the first informant that his brother Krishna Pal has taken his daughter to some where, on that information, the first informant, Jaiveer and Mangey Ram went to the house of the co-accused Ghanshyam, they also went to the village Jauhadi and Binauli in search of Krishna Pal Sharma and Km. Pinki but they could not trace out, then they returned to village at about 2.30 a.m. But one Chhote Singh, Chaman Singh Jat brought the motor cycle of Krishna Pal, then the first informant and other made inquiry from the house of Ghanshyam, the applicant co-accused Ghanshyam, co-accused Rajendra and co-accused Jai Prakash discharged the shots, consequently, Mangey Ram, Jaiveer, first informant and Chhotey sustained gun shot injuries, Chhotey died instantaneously on the spot, thereafter, Mangey Ram also succumbed to his injuries.

According to the post-mortem examination report, the deceased Chhotey had sustained gun shot wound of entry 2 cm. x 1.5 cm. x cavity deep over right side chest, the blackening was present around the neck, on dissection a single bullet was discovered. The deceased Mangey Ram had sustained gun shot wound of entry on left side chest, blackening was present underneath, 8th rib was fractured.

The injured Jaiveer Sharma was medically examined on 7.3.2009, he had sustained a sucking wound in the left axillary area, having the blackening of edges and there was a blackening and tattooing over forehead with redness of both eyes, in X-ray report of fracture of 3rd and 4th ribs of left side was found, on operation, foreign body was seen. The first informant Jagat Pal Sharma was medically examined on 7.3.2009, he has sustained wound of entry on left cheek with blackening of margins, it was having tattooing also, on operation, the fracture of mandible was found and metallic bullet was also recovered.

It is contended by learned Counsel for the applicant that the Investigating Officer recorded the statement of the first informant on 7.3.2009, he reiterated the prosecution story as narrated in the F.I.R., the statements of the deceased Mangey Ram and his brother was recorded by the Investigating Officer, who supported the F.I.R. version and clearly stated that the applicant and 3 other co-accused persons discharged the shots by their country made pistols, consequently, the deceased and injured persons sustained injuries. The Investigating Officer prepared spot inspection note with site plan which shows that the deceased was living at the place X-B and injured had sustained injuries at place X-A, X-B, X-C and X-D, the F.I.R. of this case is ante timed, the time of occurrence is highly disputed because according to the inquest report and other document prepared at that time as police form No. 13, the time of incident was 4 a.m. whereas the time of occurrence is 2.30 a.m. according to the F.I.R., it belated the whole prosecution story. It also shows that the alleged occurrence had taken place in some other manner and the real assailants may not be identified, Jagpal was medically examined on 7.3.2009 at 12.50 p.m. He was brought by his brother-in-law Satyendra Sharma, he was not brought by the police, it shows that by that time, the F.I.R. was not in existence, there is general allegation of firing against the applicant and 3 other co-accused persons whereas both the deceased persons have sustained one gun shot injury each. It has not been specifically alleged that whose shot hit the deceased and injured, there is no independent witness of the public, all the witnesses are highly partisan and nothing incriminating has been recovered from the possession of the applicant or at his pointing out, the co-accused Rajendra Kumar Singh, Jai Prakash, who have been assigned identical role as of the applicant has been released on bail. The co-accused Rajendra Kumar Singh has been released on bail by Sessions Judge, Baghpat on 14.7.2009 and the co-accused Jai Prakash has been released on bail by another Bench of this Court on 3.7.2009 in Criminal Misc. Bail Application No. 17191 of 2009 therefore the applicant is also entitled to get benefit of parity. There is a cross version of the alleged incident, the F.I.R. has been lodged in Case Crime No. 70A of 2009 in pursuance of the order passed by learned Magistrate concerned in exercise of powers conferred u/s 156(3), Code of Criminal Procedure, it was registered u/s 364, I.P.C. According to the cross version, Krishna Pal, Sonu, Jaiveer, Bittoo, Jagpal, the deceased Mangey Ram, Magan, Shyam Singh forcibly kidnapped the daughter of the first informant Smt. Raj Dulari wife of Ghanshyam in the night of 6/7.3.2009 at about 2 a.m. The alleged incident has taken place at the house of co-accused Ghanshyam. According to the cross F.I.R. also it is case of sudden provocation and in the heat of the events, the incident took place on 7.3.2009 in which Mangey Ram and Chhotey died, the applicant is a peace loving person, he is not having criminal antecedent, he may be released on bail.

In reply of the above contention, it is submitted by learned Counsel for the complainant and learned A.G.A. that both the deceased and both the injured are innocent persons, admittedly, Km. Pinky Sharma, daughter of the co-accused Ghanshyam, had gone in the company of Krishna Pal, the F.I.R. of kidnapping has been lodged in Case Crime No. 70A of 2009 u/s 364, I.P.C., P.S. Binauli, district Baghpat. Km. Pinki Sharma was a major girl, she was having love affairs with Krishna Pal, she was not kidnapped by any person, in fact, she has left her parent with her free will and consent but after committing the alleged offence of murder, such F.I.R. has been lodged, which is based on false and frivolous allegation. An application dated 7.3.2009 u/s 156(3), Code of Criminal Procedure has been filed by Smt. Raj Dulari wife of Ghanshyam in which it has been mentioned that the deceased Mangey Ram and others entered into her house and forcibly taken away Km. Pinki Sharma and discharged the shots also, but in that application also there is no reference that firing was done by her side has been made even. It has not been mentioned in the said incident, deceased Chhotey and 3 other persons sustained injuries. The dead body of the deceased Chhotey was lying at the spot but it has not been mentioned in the cross F.I.R. that Chhotey has also come at the place of the occurrence with them for the purpose of kidnapping or he was present on account of some other reason, it shows that cross F.I.R. is not based on correct fact, it is coloured version of the alleged kidnapped girl Km. Pinki Sharma and others and Krishna Pal approached this Court by way of filing Criminal Misc. Writ Petition No. 17894 of 2009 with a prayer to quash the F.I.R. of Case Crime No. 70A of 2009 u/s 364, I.P.C., P.S. Binauli, district Baghpat, it was clearly mentioned in the writ petition that Km. Pinki Sharma had performed marriage with Krishna Pal Sharma, the above mentioned writ petition was disposed of with a direction that Smt. Pinki Sharma, Petitioner No. 1 and Krishna Pal Sharma, Petitioner No. 2 shall approach the S. P., Baghpat within a period of 20 days who shall produce them in the Court of C.J.M., Baghpat for recording the statement of Smt. Pinki Sharma u/s 164, Code of Criminal Procedure prior to that she shall be medically examined by C.M.O., Baghpat for determining her age in the police custody, it was further directed that in case Petitioner No. 1 Smt. Pinki Sharma does not support the prosecution story or she appears to be major and applies for protection, the same shall be provided by the S.P., Baghpat so that their live may not be put in danger. In pursuance of that order Smt. Pinki Sharma was medically examined, she was found the age of 20 years, her statement u/s 164, Code of Criminal Procedure was recorded in which she does not support the story of the cross version as of Case Crime No. 70A of 2009, thereafter, the final report was submitted by the Investigating Officer. It is a case in which two persons have lost their lives and two persons sustained injuries, all the injuries were caused by the fire arm, the injured witnesses are there, if there is a minor discrepancy in the inquest report or some other papers, it has been done by the Investigating Officer which may not affect the merit of the case. The prosecution story has been supported by the deceased Mangey Ram prior his death the statement was recorded by the Investigating Officer, in such case where indiscriminate firing has done, it may not be specified as to whose shot hit the deceased or injured, the gravity of the offence is too much, the benefit of parity may not be given to the applicant with the bail order dated 14.7.2009, passed by learned Sessions Judge, Baghpat in favour of co-accused Rajendra because the co-accused Rajendra has been released on bail considering his plea of alibi but the learned Sessions Judge mentioned in the order dated 14.7.2009 that benefit of parity shall not be given to any other co-accused. The bail of the co-accused Jai Prakash has been allowed by another Bench of this Court on 3.7.2009 in Criminal Misc. Bail Application No. 17191 of 2009 mainly on the ground of his about 75 years, it was not disputed by learned A.G.A., its parity has not been given by learned Sessions Judge to co-accused Rajendra but he has been released on bail on the ground of alibi, in case the applicant is released on bail, he may tamper with the evidence, therefore he may not be released on bail.

Considering the facts, circumstances of the case, submission made by learned Counsel for the applicant, learned A.G.A. and learned Counsel for the complainant and from the perusal of the record, it appears that in the present case, applicant and 3 other co-accused persons discharged the shots indiscriminately, consequently, two persons have sustained injuries, one of them, namely, Chhotey died on the spot, one of the injured Mangey Ram succumbed to his injuries in the hospital on 7.3.2009 at 3.30 p.m., both the deceased have sustained one gun shot wound of entry each, injured Jaiveer Singh had sustained two injuries caused by fire arm, he was having the fracture of 3rd and 4th ribs of left side, the witness Jagpal Sharma (first informant) had also sustained one gun shot wound of entry on the left cheek having a fracture in mandible bone, the statement of deceased Mangey Ram u/s 161, Code of Criminal Procedure was recorded prior to his death, he supported the F.I.R. version, the other injured persons have also supported the prosecution story, according to F.I.R. itself, the alleged offence has been committed by applicant and other co-accused persons only because in the night of 6/7.3.2009, Krishna Pal Sharma, brother of the first informant and Km. Pinki, the daughter of co-accused Ghanshyam had gone some where. Km. Pinki and other co-accused persons of cross case filed the writ petition before this Court for quashing the F.I.R. mentioned therein that Km. Pinki Sharma had performed the marriage with Krishna Pal Sharma, though the F.I.R. was not quashed but they were directed by the High Court to appear before the Court of learned Magistrate concerned for recording the statement of Km. Pinki Sharma u/s 164, Code of Criminal Procedure prior to her medical examination for determining her age, S.P., Baghpat was directed to produce her before the Chief Judicial Magistrate and C.M.O. concerned and he was directed to provide protection also subsequently, Km. Pinki Sharma was medically examined, she was found to be major, aged about 20 years, her statement u/s 164, Code of Criminal Procedure was recorded in the Court of learned Magistrate concerned in which she did not support the prosecution version, ultimately, the Investigating Officer submitted the final report. In any case, both the occurrences, as alleged by the prosecution and as of the cross case have not occurred at the same time whereas Km. Pinki Sharma had left her parental house in the company of Krishna Pal Sharma prior to commission of the alleged incident, therefore, no benefit of alleged cross case can be given to the applicant, the case of the applicant is distinguishable with the case of co-accused Rajendra, who has been released on bail on the ground of alibi and the co-accused Jai Prakash who has been released on bail mainly on the ground of his old age, in such cases, where indiscriminate firing has been done and four persons have sustained gun shot injuries generally it cannot be specified as to whose shot hit the deceased and the injured, the gravity of the offence is too much, the applicant is not entitled for bail and without expressing any opinion on the merit of the case, the applicant is not entitled for bail. The prayer for bail is refused.

Accordingly, this application is rejected.