Nanak Chandra vs State Of U.P.
2011 Latest Caselaw 4684 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

																				Reserved
 

 
Criminal Misc. Bail Application No.  21355 of 2011
 

 
	             Nanak Chandra Vs. State of U.P. 
 

 
Hon'ble Ravindra Singh, J.

Heard Sri V.P.Srivastava, Senior Adcocate, assisted by Sri Prem Shanker Kushwaha, learned counsel for the applicant, learned AGA and Sri Chandra Shakhar Kushwaha, learned counsel for the complainant.

This bail application has been moved by applicant Nanak Chandra with a prayer that he may be released on bail in case crime no.75 of 2005, under sections 302 and 307 IPC, P.S.Bewar, District Mainpuri.

The facts in brief of this case are that the FIR has been lodged by Bhagwan Das on 21.03.2005 at about 11.45 a.m. The distance of police station was about 3 km. from the alleged place of occurrence, the applicant and co- accused Deep Chandra are named as accused in FIR, one accused was unknown . It is alleged that son of Tulsi Ram was killed by the applicant and others about 8 years prior to the incident, thereafter Tulsi Ram, and his family members had left the village, Maddapur Khas. Tulsi Ram is cousin brother of the first informant. Tulsi Ram and his family members were persuaded by Brijesh to live in their village, because the murder of Krishna Pal has become too old one. On 21.03.2005, the family of Tulsi Ram came to the village, first informant and his son Kamal Singh and Brijesh also went to the house of Tulsi Ram to meet them. In the meantime, the applicant armed with DBBL Gun along with his son Deep Chandra and one unknown miscreant, who were armed with 'Aslaha' came there and dragged out deceased Brijesh from 'Verandah', in his rescue Kamal Singh also came out. They were shot at by the applicant and other co accused persons. Consequently, Kamal Singh Brijesh became injured. The alleged incident was witnessed by Tulsi Ram and his sons Ashok and Raju. Both Brijesh and Kamal Singh were taken to Mainpuri to provide medical aid, but before reaching Mainpuri, Brijesh succumbed to his injury. The applicant and other co-accused having an old enmity with the deceased, because the deceased had persuaded to Tulsi Ram and his family to come to their village. On account of this incident, the atmosphere of the village became change with terror and fear. According to the post mortem examination report, the deceased had sustained 6 ante mortem injury in which injury no. 1, 3 and 4 are firearm wounds of entry, the injury no.2 and injury no. 5 are firearm wounds of exit. The injury no.6 was lacerated wound (Gutler Shaped) on dorsal aspect left foot. The cause of death was due to shock and haemorrhage, as a result of ante mortem firearm injuries. Kamal Singh had sustained 2 firearm wounds of entry. The applicant applied for bail before learned Sessions Judge, Mainpuri, who rejected the same on 01.07.2011. It is contended by learned counsel for the applicant that applicant is innocent, he has not committed the alleged offence, but he has been falsely implicated in the present case due to old enmity. The investigation of this case was initially initiated by the local police, but it was transferred to C.B.C.I.D. The prosecution is not corroborated by the spot inspection note and site plan. According to the site plan, the alleged occurrence has taken place (place A) on the road side. The prosecution story is not supported by the post mortem examination report. According to the statement of the witness recorded under section 161 Cr.P.C. also appears that they have not seen the alleged incident. The statement of the witness and injured, Kamal Singh are self contradictory . In the year, 1995, the nephew of the applicant was murdered by the relative of the family of Tulsi Ram. Thereafter, the son of the applicant was murdered. The applicant was falsely implicated in the case of murder of son of Tulsi Ram .Deceased Brijesh was also accused in that case. It has been concealed in the FIR as well as in the statement of witness Rajesh Kumar son of Kamal Singh, Smt. Sunita, wife of deceased have been recorded by I.O., but no independent witness of the locality was recorded by I.O. The statement of Tulsi Ram has also been recorded, who has not supported the FIR version. According to his statement in which unknown persons have committed the alleged incident.

The statement of Raju @ Rajesh and Ashok Kumar, sons of Tulsi Ram have been recorded, they also did not sport the prosecution version. According to them, 4 unknown persons have committed the alleged incident. The I.O. has recorded the statement of some witnesses, Raj Kapoor, Sushil Kumar, Prabhu Dayal and Virendra Singh, they have not supported the prosecution story. The son of the applicant was the student of High School and he appeared in the Examination of U.P.Board on 21.03.2005 from the Jasmai Inter College, which is at a distance of 25 Km. from the alleged place of occurrence. He was minor boy, aged about 14 and ½ years' old. The I.O. has recorded the statement of Head Clerk of the aforesaid college and examined the record and came to the conclusion that co accused Deep Chandra has appeared in the Examination of High School on 21.03.2005 from 7.30 a.m. to 10.30 a.m.

The statement of Banduri Lal and Smt.Kanth Shri have also been recorded , they have also not supported the prosecution version. The applicant is not present in the village on the same day of the incident, he was present in the Block-Bewar, from 10.00 a.m. to 2.00 a.m. on the date of incident which has been supported by the witness Sughar Singh and Dinesh Chandra, whose statement has been recorded by the I.O. The applicant has no concern with the alleged offence, he has falsely implicated due to village 'Party Bandi', because Rajesh Kumar son of Kamal Singh and brother of the deceased were contesting the election of 'Village Pradhan' in the year, 2000 against the applicant in which the applicant was elected as Pradhan. The applicant has surrendered before court concerned on 03.03.2011, since then he is in jail. The applicant is not previous convicted, he was falsely implicated in some criminal case also.

It is further submitted that FIR of this case is anti-timed. In the inquest report, a manipulation has been done by overwriting. The I.O. has recorded the statement of Bhagwan Das, he has not seen the alleged incident. The CBCID has recorded the statement of Tulsi Ram, he has followed the FIR version in the present case. Two site plans have been prepared by the local police as well as the I.O. of the CBCID, both are contradictory the place of incident. The applicant was falsely implicated in 14 criminal cases out of which either he has been acquitted or final report has been submitted and remaining case he has been released on bail. Therefore, the applicant may be released on bail.

In reply to the above facts and circumstance of the case and submission made by learned AGA that the applicant is very powerful person having criminal antecedents. No body in the village has dare to depose against the applicant. The family of Tulsi Ram had left the village, because his son Krishna Pal was murdered by the applicant and other. The deceased has been killed by the applicant only because the family of Tulsi Ram brought in the village by the deceased. It is broad day light murder and FIR has been lodged promptly. The plea of alibi has been taken by the applicant which may be considered at the stage of trial. There was injured witness Kamal Singh, the applicant under his influence got success for transferring the investigation of the present case from the local police to CBCID only for the purpose of avoid his arrest and lingering the proceedings. The prosecution story is fully supported by Rejesh and Smt. Sunita, wife of deceased and injured Kamal Singh, who had received gun shot injury which had assigned to the applicant. The deceased and injured had sustained gun shot injuries in the present case. The investigation was tainted to I.O., who tried to save the skin of the applicant in case the applicant is released on bail. This is a case of Year, 2005, but applicant has surrendered on 03.03.2011. He was successfully influenced the investigation in his favour in case he is released on bail he shall tamper with the evidence.

Considering the facts and circumstance of the case, submission made by the learned counsel for the applicant, learned AGA and from perusal of record, it appears that the alleged murder had taken place in broad day light at 11.45 a.m. On 21.03.2005 and its FIR was promptly lodged at 3.15 p.m., the distance of police station is 3 Km. From the alleged place of occurrence. The applicant was named in the FIR. It is alleged that he was armed with DBBL Gun, his son co accused Deep Chandra and one unknown person armed with weapon (Firearm). They dragged out the deceased from Verandah and discharged shots by their firearms causing injury to the deceased and injured Kamal Singh, but deceased Brijesh succumbed to his injury on way to the hospital. According to the post mortem examination report, the deceased has sustained 3 firearms wound of entry, 2 exit wound and one lacerated wounds (Gutler Shaped) on dorsal aspect left foot. The cause of death was due to firearm injury, injured Kamal Singh had also sustained 2 firearm wounds of entry. The applicant is having a criminal antecedent prior to alleged incident . A son of Tulsi Ram was killed, thereafter the family of Tulsi Ram had left the village due to fear and terror of the applicant, but after expiry of 8 years the family of Tulsi Ram brought to village by the deceased on the same day on their arrival to the village the alleged incident was occurred. The investigation of this case was got transferred by the applicant to CBCID. The applicant has influenced the investigation also by remaining the out side of the jail for about six years, because the alleged incident has taken place on 21.03.2005 and the applicant has surrendered before the court on 03.03.2011 in such a case where the applicant has a criminal antecedent on account of committing murder of Krishna Pal, the family of Tulsi Ram had left the village due to fear and terror when his family brought to the village after 8 years of the alleged incident on persuasion by the deceased, on the same day, on the arrival of family of Tulsi Ram in the village, the deceased and injured Kamal Singh were shot at by the applicant and other co accused by dragging out them from Verandah.

In view of above, for ensuring the free and fair trial, it is not proper to release the applicant on bail, the prayer for bail is hereby refused.

Considering the facts, circumstance and without expressing any opinion on the merit of the case, the applicant is not entitled to be released on bail. Accordingly, the application for bail is rejected.

Dated: 16.9.2011

pkc