Gyan Prakash Singh vs State Of U.P.
2021 Latest Caselaw 9466 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on  29.7.2021.
 
Delivered on 4.8.2021.
 
Court No. - 19
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27152 of 2019
 
Applicant :- Gyan Prakash Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajrshi Gupta,Dileep Kumar(Senior Adv.),Rizwan Ahamad
 
Counsel for Opposite Party :- G.A.,Sudist Kumar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Rajrshi Gupta assisted by Shambhavi Shukla on behalf of the applicant, Sanjay Kumar Nigam, Brief Holder from State and Sudist Kumar, learned counsel for the informant. Perused the record.

2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.109 of 2017, under Sections 302, 307, 504/34 I.P.C., Section 7 of Criminal Law Amendment Act, 1932 and Sections 25/27/30 of Arms Act, Police Station-Kandwa, District-Chandauli after rejection of his Bail Application vide order dated 21.6.2018, passed by learned Additional Sessions Judge, Chandauli.

3. First informant Sanjay Singh Pradhan, lodged an F.I.R. against 4 named accused Gyan Prakash Singh (applicant therein), Kumud Bihari Singh, Ashwani Singh and Pratyush Kumar Singh @ Rintu Singh alleging that:-

(a) On 29.10.2017, at about 12.30 hours some villagers came to first informant and informed that 3 of the named accused Gyan Prakash Singh (applicant therein) Ashwani Singh and Pratyush Singh are trying to usurp a chak road belonging to Gaon Sabha.

(b) First informant informed the police and reached the place of incident and objected the applicant. All the three persons started hurling abuses and rushed to their home to get their weapons.

(c) On hearing commocation, family member Kamlesh Singh, (wife of the first informant Shashi Bala Singh), Shruti Singh (daughter of the first informant), Anamika Singh, Shivani Singh (niece of the first informant), Rohit Singh (relative of first informant) along with some villagers reached at the place of incident.

(d) Meanwhile, accused persons Gyan Prakash armed with a double barrel gun, Ashwani with pharsa, Pratyush @ Rintu Singh with a country made pistol and Kumud Bihari with lathi reached at the place of incident and started indiscriminate firing and assault with intention to kill first informant and the family members.

(e) During occurrence, Samarth Singh, son of first informant Sanjay Singh @ Amar Singh, son of late Lalta Singh, Sashibala, wife of first informant, daughter Shruti Singh and niece Anamika Singh got injured and were rushed to the hospital, where Sanjay Singh (47 years) and Samarth Singh (aged about 2 ½ years) were declared dead.

4. As per the post mortem report, immediate cause of death of Sanjay Singh was shock and coma due to injury to the vital part of the body as a result of ante mortem fire arm injuries (i.e. numerous widespread pellets seen scattered on the whole of the anterior chest). So far as deceased Samarth Singh is concerned, he died due to shock and haemorrhage as a result of ante mortem fire arm injury. (Injuries due to pellets seen on left part of thighs with blackening and scarring).

5. Learned counsel for the applicant submitted that:

(a) The true genesis of the occurrence was suppressed. Complainant side were aggressors, who came with deadly weapons and assaulted the accused party in which 3 persons (applicant Gyan Prakash Singh, Ashwani Kumar Singh and Kamla Devi) were injured. They were examined on 29.10.2017. Applicant suffered fracture in Maxilla and mandible bone on the face, shaft of left Ulna and 5th Metatorsal on right foot and head injuries were found on the person of other two persons. Prosecution has not given any explanation for abovesaid serious injuries caused to accused side.

(b) It is a case of the defence that co-accused Kumud Bihari (father of the applicant) had fired in self defense from his licensed double barrel gun when complainant side were assaulting them and stray bullet might have hit the deceased persons.

(c) The applicant has been falsely implicated in the present case by assigning his role of holding the licenced fire arm of his father.

(d) Applicant is an old and infirm person aged about 68 years and is suffering from various old age ailments.

(e) Co-accused Kumud Bihari Singh and Ashwani Singh have been granted bail by this Court, however, role of the applicant and other co-accused Pratigya Singh were distinguished.

(f) In cross version, F.I.R. was lodged in pursuance of the order passed on an application filed on behalf of the accused side, wherein persons from complainant side are on bail.

(g) The applicant is languishing in jail since 3.12.2017, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial. During trial, statements of P.W.1 and P.W.2 have been recorded. However, they have not explained the injuries caused to the accused person.

6. Learned counsel for the informant and the learned A.G.A. have vehemently opposed the bail application and submitted that:

(i) The accused persons were aggressors and when they were objected for their illegal act, they went to their house and came back with weapons and started indiscriminate firing.

(ii) Specific role is attributed to the applicant of firing. Two persons including a boy aged about 2 ½ years died during the occurrence.

(iii) F.I.R. on cross version of the occurrence was lodged in pursuance of order dated 1.12.2017 passed by the Magistrate on an application dated 13.11.2017, whereas the occurrence occurred on 29.10.2017.

(iv) The double barrel gun was recovered on the pointing out of co-accused Ashwani Singh, son of the applicant from the house of the accused persons.

(v) Defence of the applicant will be subject matter of trial and cannot be made ground for grant of bail.

(vi) All the eye witnesses have submitted that double barrel gun was with the present applicant and a country made pistol was with the co-accused Pratyush Singh.

7 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.

(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.

(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

8(a).The injured eye witness account are apparently consistent that when the accused side were objected by the complainant side for taking possession of a property allegedly belonging to Gaon Sabha, they went to their house and came back armed with rifle and country made weapon, started firing which resulted in homicide of two persons, including a boy aged about 2½ years and 3 persons were also injured of complainant side. Both homicide were due to firearm injuries.

(b) Whether the firing from the accused side was in self defence or not could be raised during trial at the relevant stage. Such defence cannot be made a ground of bail ignoring the eyewitnesses account which prima-facie indicates that accused side were aggressor.

(c) The F.I.R. in cross version was registered on 4.12.2017 for an incident dated 29.10.2017 in pursuance of order dated 1.12.2017 passed on the application dated 13.11.2017 apparently after some delay. The plea of suppression of real genesis of occurrence and allegedly, no explanation of injuries caused to accused side by P.W.1 and P.W.2 during trial are subject matter which would be decided by the trial court. Any comment of this Court on these issues will cast effect on the ongoing trial.

(d) There are very serious charges against the applicant of causing homicide of two persons including a young boy of 2 ½ years. No case of bail is made out.

9. Accordingly, this bail application is rejected. However, the trial court is directed to take endeavour to conclude the trial within two years.

Order Date:-4.8.2021

SB