Allahabad High Court
Jagdish (Second Bail) vs State Of U.P. on 29 July, 2021
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserve Judgment
Court No. - 15
Case :- BAIL No. - 2602 of 2020
Applicant :- Jagdish (Second Bail)
Opposite Party :- State of U.P.
Counsel for Applicant :- Amrendra Nath Tripathi,Neha Singh,Nidhi Singh
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Amrendra Nath Tripathi, learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.
2. The present second bail application has been filed on behalf of the applicant seeking bail in pursuance to the First Information Report registered as Case Crime No. 218 of 2017, under Section 302 I.P.C., Police Station - Deeh, District - Raebareli. The first bail application was rejected by another Court by means of order dated 02.04.2019, while placing reliance upon the statement of the complainant recorded under Section 161 Cr.P.C., who had supported the prosecution version and has stated that he is the eye witness of the incident alongwith wife and daughter of the deceased.
3. While pressing the second bail application learned counsel for the applicant has submitted that there are certain developments which had occurred after rejection of first bail application and therefore, those facts deserve to be considered in the present second bail application.
4. It has been submitted by learned counsel for the applicant that the complainant Raju has been examined as PW-1 in the trial, who in his examination-in-chief has supported the version of prosecution by stating that it was the applicant who had opened fire upon the deceased, injuring him seriously and also that he had taken the injured to the hospital. It is further stated by PW-1 that the wife and daughter of the deceased were also eye witness of the incident. Learned counsel for the petitiner has vehemently submitted that during his cross examination PW-1 has stated that after lodging the first information report he did not gave any statement to the Police and therefore has tried to impress this Court that rejection of the first bail application solely on the basis of the statement of the complainant recorded under Section 161 Cr.P.C., deserves to be looked into again. PW-1 has further stated that he is not aware whether there was any dispute between the applicant and deceased with regard to any motorcycle, and therefore submits that there seems to be lack of motive of the incident.
5. It has further been alleged that PW - 2 Kamla Devi was also examined during trial, who is wife of the deceased. She has stated that she reached the spot after hearing the sound of gun shot, where she saw the accused waving a fire arm in his hand and when she went ahead she saw it was her husband who was lying in the pool of blood and the applicant had shot him. She has stated that at that point of time PW-1 Raju was present and who had also witnessed the incident. During cross examination of PW-2, at one place has stated that PW-1 Raju was not prresent on the spot. No further questions were put to her to clarify the discrepancy in her statements. Statement of PW-3 Soni (dauther of the deceased) has also been recorded, she in her statement has only deviated from other prosecution witnesses to the extent that PW-1 Raju was not the eye witness of the incident, but again no further question was put to her in this regard.
6. Lastly, learned counsel for the applicant has vehemently submitted that in sum and substance, from perusal of the statements of PW-1, PW-2 and PW-3, so recorded during trial would indicate tht they have clearly taken contradictory stands regarding presence of eye witness i.e. PW-1 on the spot. Counsel for the applicant submits that contradiction as they emerge from the statements of prosecution witnesses are firstly with regard to presence of the complainant having witnessed the incident and consequently the said discrepancies, raises sufficient doubt about the occurrence and secondly about the involvement of the applicant in the crime. It is submitted that the wife and daughter of the deceased have clearly stated that they were not eye witness of the incident and have reached the place of occurrence after hearing the sound of gun fire and that they have seen the applicant fleeing from the spot with the weapon in his hand and the deceased was lying on ground at that time and PW-2 and 3 state that it is the applicant who has shot the deceased, though they have not seen the applicant shooting the deceased. Lastly it has been urged that the applicant has spent four years in judicial custody and also that in the meanwhile co-accused Ram Chandra has been enlarged on bail.
7. Learned Additional Government Advocate on the other hand has vehemently opposed the bail application by submitting that looking into the evidences which have come up during investigation as well as trial, clearly point towards the complicity of the applicant in the crime and also the fact that his case is distinguishable with that of co-accused Ram Chandra and therefore the second bail application deserves to be rjected.
8. Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the material available on record.
9. Considering the facts as have been placed before this Court by learned counsel for the applicant, indicate that PW-1 Raju who is the complainant and also eye witness of the incident has clearly supported the case of the prosecution inasmuch as he has witnesses the entire incident when the applicant opened fire upon the deceased due to which the deceased was fatally injured and later on succumbed to the injuries sustained by him during the incident.The statements of wife and daughter of the deceased PW-2 and PW-3 respectively, also do not in any manner absolve the applicant and the minor discrepancies which have come up during their cross examination could not be read out in favour of the applicant as they have supported the case of the prosecution in material particulars. Lastly, the fact regarding bail being granted to co-accused Ram Chandar, was on the ground that it was the applicant herein who had opened fire on the deceased and while the role assigned to the co-accused Ram Chandar was of exhortation. Thus, the case of co-accused Ram Chandar is clearly distinguishable from that of the applicant, and ground of parity is also not available to the applicant.
10. Accordingly considering the gravity of offence as well as the evidences which clearly point towards the complicity of the applicant in the crime, this Court at this stage is not inclined to grant bail to the applicant.
11. The second application for bail is rejected.
Order Date :- 29.7.2021
A. Verma
(Alok Mathur, J.)
