Komal Singh vs State Of U.P.
2023 Latest Caselaw 12300 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 16
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9635 of 2019
 
Applicant :- Komal Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vineet Kumar Mishra,Salil Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Srivastava
 
Hon'ble Subhash Vidyarthi,J. 

1. Heard Dr. Salil Kumar Srivastava and Sri Vineet Kumar Mishra Advocates, the learned counsel for the applicant and Sri Manish Kumar Pandey, the learned A.G.A.-I for the State and perused the record.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime no. 189 of 2018, under Sections 307, 302, 286, 506, 120-B I.P.C. and Section 7 of Criminal Law Amendment Act, registered at Police Station Baghrai, District Pratapgarh.

3. The aforesaid case has been registered on the basis of F.I.R. lodged on 14.09.2018 at 20:30 hours against the applicant, his son Yashwant Singh and one Ram Singh, alleging that at about 5:15 p.m on the date of lodging the F.I.R, the informant, his nephew Bhim Singh and cousin Arun Kumar Singh were talking near their house. Meanwhile, upon exhortation of the co-accused Ram Singh, the applicant and his son Yashwant Singh came running and because of a dispute regarding passage, the applicant and his son fired gun shots which hit Bhim Singh and Arun Kumar Singh.

4. The post mortem examination report of Bhim Singh mentions two fire arm entry wounds, one on his chest and another below the lateral aspect of right shoulder and two firearm exit wounds and no other injury has been reported on his body. The cause of death has been opined to be shock and hemorrhage due to ante mortem fire arm injuries.

5. The post mortem examination report of Arun Kumar Singh also mentions two fire arm entry wounds, one on the middle aspect of thigh and the other on the back of his abdomen and an exit wound on right side of thigh and no other injury has been reported on his body and he also died because of shock and hemorrhage due to ante mortem fire arm injuries.

6. A copy of the sale deed of an agricultural land purchased by the co-accused Yashwant Singh has been annexed with the affidavit filed in support of the bail application and it has been contended by the learned counsel for the applicant that the deceased as also certain other persons were trying to commit trespass upon the aforesaid agricultural land purchased by the co-accused person and the incident occurred when the applicant tried to protect his property by preventing the criminal trespass being atempted by the deceased persons and they had fired gun shot in exercise of the right of self defence.

7. A copy of the site plan has been annexed with the affidavit filed in support of the bail application which shows the houses of the deceased persons, an agricultural land, which has been purchased by the applicant's son Yashwant Singh as also the place where the deceased persons were shot at.

8. The police claim to have recovered a rifle on 15.09.2019 from the house of the applicant on his pointing out. Three empty cartridges of 315 bore were also recovered from the site of the occurrence.

9. It has been stated in the affidavit that a Tweet was uploaded on 14.09.2018 at 8:18 p.m. claiming that the police had arrested two accused persons and had recovered the rifle used in the incident and a print out of the aforesaid Tweet has been annexed as R.A.1 to the rejoinder affidavit which has been filed on behalf of the applicant.

10. It has further been stated that the applicant had received injuries in the incident and a copy of his medico legal examination report indicates that the applicant had been taken for medico legal examination by a constable on 16.09.2018 at 12:50 p.m. and the medico legal examination mentions a lacerated wound (healing) 4cm X 0.5 cm on scalp 20cm above C7 spine, pain in right thigh, pain in left shoulder and pain in left knee and an old healing abrasion of size 0.5 cm X 0.5 cm on left forearm, 8cm from elbow.

11. The state has filed a counter affidavit annexing therewith a copy of the post mortem examination report and of the statements recorded during investigation as also copies of the recovery memo and the chargesheet. Some of the witnesses have reiterated the F.I.R. version and have stated that the applicant was carrying a rifle and his son Yashwant Singh was carrying a revolver and because of a dispute relating to a passage, the aforesaid persons shot at and killed Bhim Singh and Arun Kumar Singh. Both the aforesaid persons got seriously injured and fell down on the spot. The accused persons ran away upon seeing a crowd running towards them. Aneeta Singh, wife of deceased Arun Kumar Singh has stated that the applicant had purchased an agricultural land situated adjacent to her house and there was a drain and a passage through the aforesaid agricultural land for the past several years. After execution of the sale deed the applicant was trying to merge the land of the passage and the drain in his field, which was being opposed by her family members and by several villagers, due to which the applicant was keeping an animosity from the family of the deceased persons. On 14.09.2018, the accused persons had called the deceased persons near the field and the said witness followed them. While the aforesaid persons were talking, a quarrel started and upon exhortation of the co-accused Ram Singh, the other two accused persons fired gun shots killing Bhim Singh and Arun Kumar Singh. Similar statements have been given by some other persons also.

12. The learned counsel for the applicant Dr. Salil Kumar Srivastava has submitted that from the statements recorded by the Investigating Officer, it is clear that the applicant has purchased an agricultural land; and some other persons were trying to trespass on the aforesaid land by claiming right of drainage and passage on a portion of the land. He further submitted that the incident occurred when the deceased and other persons associated with him were trying to commit criminal trespass on the agricultural land of the applicant by altering his Med "boundary mark" and the applicant fired gun shots in exercise of the right of private defence of property as provided under Section 103 of the Penal Code.

13. Section 103 provides that the right of private defence of property extends, under the restrictions mentioned in section 99, which in turn, provides as follows:- "There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law." It is nobody's case that any person, other than accused, was armed with any weapon, whereas the accused persons were carrying fire arms. The applicant claims to have fired gun-shots in exercise of the right of private defence of property and Section 103 of Penal Code provides that when a robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property or theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised, right of private defence extends to the voluntary causing of death. In the present case there is no allegation of any robbery, house breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property or theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension of death or grievous hurt. Moreover, a perusal of the site plan indicates that the deceased persons were killed at a place which is at a distance of about 62 steps away from the applicant's field and, therefore, the allegation that the gun-shots were fired in exercise of the right of self defence when the deceased persons were encroaching on the property of the applicant, prima facie appears to be without force.

13. The learned counsel for the applicant Dr. Salil Kumar Srivastava has next submitted that while the persons had gathered for a settlement of the dispute, a sudden fight and a sudden quarrel took place and the gun-shots were fired in heat of passion, without premeditation; in exercise of the right of self defence. However, as has been noted above, the accused persons had come to the place of the incident carrying fire arms whereas no other persons is said to be carrying any arm or weapon. At this stage, there is no material before the Court which may even prima facie justify killing of two people by firing gun shots in alleged exercise of his defence in the aforesaid factual situation.

14. The learned counsel for the applicant has submitted that the present case falls under exception 4 mentioned in the illustration to Section 300 of the I.P.C which provides that:- "Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner". He has submitted that the present case would fall within Section 304 I.P.C. The applicant is charged with causing death of two persons by firing gun shots. Whether the case would filed under Section 302 or under Exception 4 to Section 300, will be decided by the Trial Court after scrutinizing the evidence led by the parties and this Court finds it appropriate not to record any finding on this issue at this stage. Even if the offence is punishable under Section 304, it is punishable with up to imprisonment for life and, therefore, the offence is heinous.

15. Dr. Salil Kumar Srivastava has further submitted that the applicant had also suffered injuries in the incident and there is no mention thereof in the F.I.R. which makes the entire prosecution case doubtful. He has relied upon a judgment given by this Court in Sonpal and another Vs. State of U.P., 1991(28) A.C.C. 54, wherein this Court held that " yet another cardinal principle is that if it is found on the material on record that the accused had suffered injuries in the incident, it is the bound duty of the prosecution to explain those injuries." The Court proceeded to hold that whereof the injuries of the accused could not be explained, the unfavorable conclusion would be acquittal of all the accused persons.

16. I have considered the aforesaid facts and circumstances of the case as well as submissions advanced by the learned counsel for the applicant. What prima facie appears from the material available on record before the Court at this stage is that the incident occurred on 14.09.2018 at about 5:15 p.m and the F.I.R. has been lodged on the same day at 20:30 hours i.e. after about three hours since occurrence of the incident. The accused persons, the informant and the deceased all are residents of the same village and there is no dispute regarding identity of the persons involved in the incident. The applicant claims that the incident occurred suddenly when the deceased persons and other persons were trying to commit criminal trespass on his property. However, a perusal of the site plan annexed with the affidavit in support of the bail application itself indicates that the deceased persons received gun shot injuries at a distance of about 62 steps from the land of the applicant.

17. So far as the injuries of the applicant are concerned, as have already been noted, the injuries are an old lacerated wound on scalp and an old healing abrasion on left elbow. Apart from pain in thigh, shoulder and knee. No statement recorded during investigation could be pointed out by the learned counsel for the applicant in which anything has been stated regarding the aforesaid injuries having been suffered during the incident. As has already been noted, the doctor himself mentioned the injuries to be old.

18. Dr. Salil Kumar Srivastava has next drawn the attention of the Court to a document annexed with the rejoinder affidavit filed on behalf of the applicant, which is an extract of the case diary wherein it is recorded that some footwear left near the place of the incident were collected and handed over to the chaukidar with an instruction to hand it over to whom the same belonged. He has submitted that this entry recorded in the case diary indicates that a large crowd had gathered at the place of the incident and the accused applicants were under threat of serious harm being caused by the aforesaid crowd and, therefore, they had fired gun shot in exercise of their right of self defence.

19. The mere mentions of same disclosed number of footwear having been found near the place of the occurrence does not lead to any inference that the accused persons were under actual threat of life or limb from the crowd and this could also lead to an inference that the persons present there had ran away to save their lives under threat of injury due to the gun-shots fired by the accused persons.

20. It is also significant to the note that this bail application is pending since the year 2019 and the trial is proceeding. Although the statement of numerous witnesses have been recorded, and although, numerous supplementary affidavits filed subsequent to filing of the bail application, last one having been filed on 12.09.2022, the applicant chose not to place any of the statements before this Court from which the reasonable inference which naturally follows is that those statement are unfavorable to the applicant. .

21. Although, the principle of parity is not applicable to rejection of a bail, but this fact is being mentioned merely to put the record straight that the bail application of co-accused Yashwant Singh has been dismissed by means of an order dated 17.10.2022 passed by this Court in Criminal Misc. Bail Application No. 5915 of 2021.

22. The learned counsel for the applicant has relied upon the case of Dataram Singh v. State of U.P., (2018) 3 SCC 22, the Hon'ble Supreme Court has held that: -

"5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India: 2017 (13) SCALE 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab: (1980) 2 SCC 565 in which it is observed that it was held way back in Nagendra v. King-Emperor: AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson: AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."

23. After noting the aforesaid legal possession, the Hon'ble Supreme Court proceeded to observed that :-

"However, we should not be understood to mean that bail should be granted in every case. 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 and compassionately. "

24. The learned counsel for the applicant has submitted that the applicant is presently aged about 79 years and he is languishing in jail since 16.09.2018 and, therefore, he should be released on bail. Although, age of long incarceration are relevant factors to be taken into consideration while deciding the bail applications but the same are not decisive

25. Keeping in view the fact that it is a case of double murder committed in broad day light; that although the applicant claims that he killed the deceased persons in exercise of right of self defence when they were committing trespass on his field, the site plan indicates that the deceased persons were killed about 62 steps away from his field and that there is no reasonable doubt regarding identity of the persons who had caused the incident, I am of the considered view that the aforesaid consideration outway the considerations of advanced age and long incarceration of the applicant.

26. I am of the considered view that the aforesaid facts do not warrant exercise of discretion in favour of the applicant by enlarging him on bail. Accordingly, the bail application stands rejected.

27. However, since the trial is pending since 2018 it is observed that the trial court will proceed with the trial expeditiously and while making very endeavor to conclude the same at the earliest, without granting any unnecessary adjournment to any of the parties.

(Subhash Vidyarthi,J.)

Order Date :- 21.4.2023

Preeti.