Dhirendra Pratap Singh vs State Of U.P.
2023 Latest Caselaw 14166 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Judgment Reserved on 24.4.2023
 
Delivered on  5.5.2023.
 
Court No. - 76 
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 52011 of 2022 
 
Applicant :- Dhirendra Pratap Singh 
 
Opposite Party :- State of U.P. 
 
Counsel for Applicant :- Satyendra Narayan Singh,Pankaj Kumar Mishra 
 
Counsel for Opposite Party :- G.A.,Mahendra Singh,Ravesh Kumar Singh 
 

 
Hon'ble Saurabh Shyam Shamshery,J. 

1. Heard Sri Satyendra Narayan Singh, learned counsel for applicant, Sri Ravesh Kumar Singh, learned counsel for informant and Sri Markandey Singh, learned Brief Holder for State.

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.244 of 2022, under Sections 147, 148, 149, 302, 504 and 506 I.P.C., Police Station-Jaswant Nagar, District-Etawah after rejection of his Bail Application vide order dated 11.8.2022 passed by learned Sessions Judge, Etawah.

3. Prosecution story as referred in the F.I.R unfolds that on the date of occurrence, informant and his brother were standing on roof of their house, when applicant along with other co-accused persons by forming unlawful assembly and in furtherance of their common intention, having country made pistols and rifle came and started abusing and started indiscriminate firing by saying that,"Saale Tera Tau Hum Logon Ke Khilaaaf Gawahi Deta Hai Aaj Tujhe Zinda Nahin Chodenge". It was specifically alleged that present applicant shot fire from his single shot rifle which hit complainant's brother and he fell down. Thereafter, he was rushed to hospital and on way he died and was declared brought dead at hospital. After the incident, all the accused persons ran away by threatening the informant and his family members of dire consequences.

4. Learned Counsel for the applicant vehemently argued that nature of injuries referred in the postmortem report does not corroborate with nature of injury could be caused by the weapon assigned to the applicant i.e.a single shot rifle.

5. Learned counsel for applicant referred antemortem injury mentioned in the postmortem report ,which is as under:

"Entry of firearm wound of right 4x3 cm present over right side of forehead. 5 cm above Right eyebrow underline bone fracture margin inverted (illegible) abrasion present around the wound."

6. Learned counsel for applicant also submitted that it was a case where there was exchange of firing between two parties and deceased had no connection with occurrence. However, unfortunately, a stray bullet hit deceased who died. It was not a case of murder, but it may be a case of culpable homicide not amounting to murder.

7. Learned counsel for applicant also referred statement of witnesses recorded during investigation that it was a case of exchange of a firing between two parties and F.I.R in this regard was also lodged. Applicant is languishing in jail since 19.6.2022, 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.

8. Learned counsel for informant and learned Brief Holder for State while opposing the bail application submitted that there is an evidence of an eye witness who was standing along with deceased on the roof of their house at the time of occurrence when accused and other persons by forming unlawful assembly came to the place of occurrence and started using abusive language and applicant by using his single shot rifle fired upon deceased who died. A motive has also been assigned to the applicant and co-accused which has not been contradicted by any material on record.

9. LAW ON BAIL - A SUMMARY

(A) The basic rule may perhaps be tersely put as bail, not jail.

(B) Power to grant bail under Section 439 Cr.P.C., is of wide amplitude but not an unfettered discretion, which calls for exercise in a judicious manner and not as a matter of course or in whimsical manner.

(C) While passing an order on an application for grant of bail, there is not need to record elaborate details to give an impression that the case is one that would result in a conviction or, by contrast, in an acquittal. However, a Court cannot completely divorce its decision from material aspects of the case such as allegations made against accused; nature and gravity of accusation; having common object or intention; severity of punishment if allegations are proved beyond reasonable doubt and would result in a conviction; reasonable apprehension of witnesses being influenced by accused; tampering of evidence; character, behaviour, means, position and standing of accused; likelihood of offence being repeated; the frivolity in the case of prosecution; criminal antecedents of accused and a prima facie satisfaction of Court in support of charge against accused. The Court may also take note of participation or part of an unlawful assembly as well as that circumstantial evidence not being a ground to grant bail, if the evidence/ material collected establishes prima facie a complete chain of events. Parity may not be an only ground but remains a relevant factor for consideration of application for bail.

(D) Over crowding of jail and gross delay in disposal of cases when undertrials are forced to remain in jail (not due to their fault) may give rise to possible situations that may justify invocation of Article 21 of Constitution, may also be considered along with other factors.

(See, State Of Rajasthan, Jaipur vs. Balchand @ Baliay (AIR 1977 SC 2447 : 1978 SCR (1) 535; Gurcharan Singh vs. State (Delhi Administration), (1978) 1 SCC 118); State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21; Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr (2010)14 SCC 496; Mahipal vs. Rajesh Kumar, (2020) 2 SCC 118; Ishwarji Mali vs. State of Gujarat and another, 2022 SCC OnLine SC 55; Manno Lal Jaiswal vs. The State of U.P. and others, 2022 SCC OnLine SC 89; Ashim vs. National Investigation Agency (2022) 1 SCC 695; Ms. Y vs. State of Rajasthan and Anr :2022 SCC OnLine SC 458; Manoj Kumar Khokhar vs. State of Rajasthan and Anr. (2022)3 SCC 501; and, Deepak Yadav vs. State of U.P. and Anr. (2022)8 SCC 559)

10. In the present case, according to prosecution story, applicant and other persons came in an unlawfull assembly, with their common intention to cause death having enmity that deceased's Uncle has given a statement against them before Court and applicant being member of unlawfull assembly has been assigned specific role of firing.

11. So far as submission of learned counsel for applicant is concerned that it was a case of exchange of firing between two parties and a stray bullet has caused death of deceased does not appear to be supported by any cogent evidence except an FIR bearing No.0251/ 2022 which was lodged on 22.6.2022 i.e. after a period of 6 days under sections 147,148,149,307 and 506 IPC. Though, it refers death of deceased, but no further cognizance has been taken, therefore, applicant cannot get any advantage of the same.

12. In regard to issue of nature of fire arm injury and nature of weapon assigned to applicant is concerned, taking note of size of fire arm entry wound, margin inverted and underline temporal bone was fractured and a metallic bullet was recovered from same region as well as taking note of distance, it cannot be conclusively ruled out at this stage that injury could not be caused by the weapon assigned to the applicant.

13. There is a substance in the argument of learned Brief Holder for State that defence of applicant that it was a case hit by stray bullet and that an F.I.R. was logded by their side cannot give any advantage to the applicant, since it was a belated F.I.R and where no cognizance has been taken in regard to death of deceased, whereas in the present case there are eye witness account which corroborates the prosecution case, wherein applicant has been assigned role of firing which has caused death of deceased.

14. Accordingly, it is a case of murder and argument of counsel for applicant that it may be a case of culpable homicide not amounting to murder cannot be sustained at this stage therefore, this bail application is rejected.

Order Date:-5.5.2023

SB