Shiv Shankar Pathak vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 10830 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3763 of 2023
 

 
Applicant :- Shiv Shankar Pathak
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko.
 
Counsel for Applicant :- Amar Singh
 
Counsel for Opposite Party :- G.A.,Anand Mani Tripathi,Anand Mani Tripathi,Manoj Kumar Mishra,Rama Niwas Pathak,Sudhir Kumar Pandey
 

 
Hon'ble Subhash Vidyarthi,J.

Heard Sri Amar Singh, the learned counsel for the applicant, Sri Jayant Singh Tomar, the learned A.G.A.-I for the State as well as Sri Rama Niwas Pathak, holding brief of Sri Anand Mani Tripathi, the learned counsel for the informant and perused the record.

The instant application has been filed seeking release of the applicant on bail in Case Crime no. 182 of 2022, under Sections 302, 120-B I.P.C., registered at Police Station Laliya, District Balrampur.

The aforesaid case has been registered on the basis of F.I.R. lodged on 21.11.2022 at 22:11 hours against the applicant, his son and an unknown person, stating that her husband had gone to the market at Lalpur crossing where the accused persons killed him by shooting with some fire arm. The informant had come to lodge the F.I.R after receiving the information of the incident.

In the statement of the informant recorded under Section 161 Cr.P.C., she stated that there is a case between the parties which is pending since the year 2013, in which the informant and her mother-in-law had received injuries. On 11.11.2021, the informant's statement was recorded in the aforesaid case and the named accused persons had killed her husband because of the aforesaid animosity. The Investigating Officer has recorded in the case diary that he had received information from a mukhbir that co-accused Ravi Shanker Pathak (the applicant's son) is very quite since after the incident and he is not moving out of his house; that he might be a suspect. The mukhbir also told that one Jamshed is associate of the co-accused Ravi Shanker Pathak, he always accompanies him and some unspecified persons have told that both the persons had been seen together on a motorcycle on the date of the incident. The police claimed to have arrested the co-accused Ravi Shanker Pathak and Jamshed on 30.11.2022 and in their custodial statement, both of them confessed to having given effect to the incident and a country made pistol and an empty cartridge was recovered on the pointing out of co-accused Ravi Shanker Pathak. After the aforesaid arrest of two persons, their alleged confession made in police custody and recovery of the weapon used in commission of offence on the pointing out of co-accused Ravi Shanker Pathak, the Investigating Officer recorded in the case diary that mukhbir told that the applicant was also involved in hatching a conspiracy for giving effect to the incident.

On 29.12.2022, the Investigating Officer recorded additional statement of the informant wherein she stated that on the date of the incident when her husband was going towards market, she was present on the road and she had seen Jamshed sitting on a motorcycle with other named co-accused Ravi Shanker Pathak and she believed that Ravi Shanker Pathak had killed her husband and the other accused persons were also involved in the incident. Another witness Neeta Mishra, who is wife of the deceased's brother, also expressed her belief that the applicnat had got the deceased killed by hatching a consipiracy.

Subsequently, on 14.12.2022 the informant submitted an affidavit stating that she had seen the applicant, his son Ravi Shanker Pathak (co-accused) and Jamshed Siddiqui killing her husband by shooting him with a gun.

In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the present case.

The learned A.G.A. has filed a counter affidavit annexing therewith a copies of the relevant material collected during investigation and it has been stated that the applicant has a criminal history of two cases, including the present case and another case bearing Case Crime No. 212 of 2013, under Sections 323, 504, 308 I.P.C. P.S. Laliya, District Balrampur.

The learned counsel for the applicant has filed a rejoinder affidavit on behalf applicant which states that the applicant was convicted by a judgment and order dated 28.11.2018 in Case Crime No. 212 of 2013 passed by the Additional Session Judge/Fast Track Court, Ist, Balrampur for commission of offence under Sections 323 read with Section 34, 504 I.P.C and he was extended the benefit of the First Offender Act and was released on prohibition for period of one year, which period has expired long ago.

The informant has also filed a counter affidavit annexing therewith a copy stating that earlier deceased's mother had lodged a report for commission of offence under Sections 323 and 504 I.P.C against the applicant and three of his other relatives alleging that because of an old political animosity, the said persons had beaten them with kicks, fists and sticks and had abused them, upon the aforesaid information a non-cognizable report has been registered, which still pending.

Having considered the aforesaid facts and circumstances of the case, what prima facie transpires from the material placed before the Court at this stage is that as per the averments made in the F.I.R., the informant is not an eye witness of the incident and she stated that she had come to lodged the F.I.R. after receiving information of the incident; that the F.I.R does not disclose as to who gave information of the incident to the informant; that in the statement of the informant recorded under Section 161 Cr.P.C., she stated that a case arising out of beating is pending between the applicant and her family since the year 2013 and the accused persons had killed her husband because of the aforesaid animosity and in this statement also she stated that she reached on the spot upon receiving information of the incident, without disclosing the source of information; that police claimed to have arrested the applicant's son named Ravi Shanker Pathak and One Jamshed, who have recorded their custodial confessional statement and to have recovered the fire arm allegedly used in the incident on the pointing of Ravi Shanker Pathak (co-accused) and it is only in the additional statement of the informant recorded on 29.12.2022 i.e after about one month and one week after the lodging of the F.I.R, she stated that she had seen Jamshed sitting on a motorcycle along with Ravi Shanker Pathak on the date of the incident and it is only in her affidavit dated 14.12.2022, that the informant stated for the first time that she had witnessed the applicant, co-accused Ravi Shanker Pathak and Jamshed Siddiqui killing her husband by shooting him with a gun. However, even in this affidavit, she does not mention as to who of the aforesaid three persons had fired the shot. It is significant to mention that post mortem examination report mentions a single fire arm wound and a bullet was recovered from the dead body and the police have recovered a country made pistol on the pointing of co-accused Ravi Shanker Pathak. Without making any observations which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail.

Accordingly, this bail application stands allowed.

Let the applicant Shiv Shankar Pathak be released on bail in Case Crime no. 182 of 2022, under Sections 302, 120-B I.P.C., registered at Police Station Laliya, District Balrampur, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions: -

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

(Subhash Vidyarthi,J.)

Order Date :- 12.4.2023

Preeti.