Anjani Mishra Alias Vikas vs State Of ...
2023 Latest Caselaw 26559 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 High Court of Judicature of Allahabad 
 
	(Lucknow)
 
		............
 
			      Neutral Citation No. - 2023:AHC-LKO:62937
 
							
 
Reserved on 25.09.2023
 
							Delivered on 27.09.2023
 
Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1599 of 2022
 

 
Applicant :- Anjani Mishra Alias Vikas
 
Opposite Party :- State Of U.P.Thru.Prin.Secy.Deptt.Of Home Lko
 
Counsel for Applicant :- Kapil Misra,Bipin Kumar Tiwari,Ravindra Mani Misra
 
Counsel for Opposite Party :- G.A.,Avneesh Kumar Shukla,Rama Pati Shukla
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri Jyotindra Misra Senior Advocate assisted by Kapil Misra, learned counsel for the applicant,Sri Avneesh Kumar Shukla, learned counsel for the complainant and Sri Shani Pratap Singh, learned A.G.A. for the State.

2. The present bail application has been filed by the applicant-Anjani Misra @ Vikas with a prayer to enlarge him on bail in Case Crime No. 227 of 2020 under sections 147, 148, 149, 307, 302, 34 IPC & 7 Criminal Law Amendment Act, Police Station Jagdishpur District Amethi.

3. It has been submitted by learned counsel for the applicant that F.I.R. has been lodged by the complainant, making allegations that five accused persons including the applicant had assaulted the deceased with fire arms. It has been stated in the F.I.R. that Parasuram Misra was armed with .12 bore gun and other four co-accused were armed with country-made pistol. It has also been stated by the learned counsel for the applicant that the accused fired from the roof of Parasuram Misra but the site plan indicates that firing was done from the top of the roof of Jai Ram Misra and according to his argument, site plan indicates that the place of firing has been changed for the reason that from the roof of Parsuram Misra nothing is visible. It has been further submitted by the learned counsel for the applicant that final report has been filed in favuor of Samarjeet Maurya, co-accused. It was found that he was not involved in the commission of crime. He has further submitted that in the F.I.R. there are two injured Kamlesh Misra and Rajendra Misra but during investigation another person Rakesh Misra has been introduced as injured witness which indicates that the prosecution case is doubtful. In statement of Brijesh Mishra,role of firing has been assigned to all accused and in the statement of Rajendra Misra, gun has been assigned to Parasuram Misra and other co-accused have also been assigned the role of firing with single barrel gun. It has been submitted by learned counsel for the applicant that there is contradiction in the statement of Kamlesh Misra, who has stated that Parasuram Misra , co-accused is having gun in his hand and his two sons and Sunil Misra were exhorting. It has been submitted by learned counsel for the applicant that there are vast contradiction in the statement of Rajendra Mishra, Brijesh Misra and Kamlesh Misra. It has been further submitted that the postmortem report indicates six injuries but it appears that two bullets were fired and rest injuries are caused with pellets which spread during firing. In support of his arguments learned counsel for the applicant has relied upon the judgment of this Court in the case of Nanha Vs. State of U.P. reported in 1994 All LJ 328.

4. On the other hand, Sri Avneesh Kumar Shukla, learned counsel for the complainant has opposed the prayer of the bail of the applicant and has submitted that the trial court has taken the statement of many witnesses, who have supported the prosecution case. He has further submitted that bail application of co-accused, namely, Sunil Kumar Mishra and Dharmendra Mishra has been rejected by the co-ordinate Bench of this Court by two separate orders dated 09.11.2021 passed in Bail No. 2561 of 2021 and 11139 of 2020 respectively. He has submitted that second bail application of Sunil Kumar Mishra has also been rejected by this Court vide order dated 07.04.2023 passed in Criminal Misc. Bail Application No. 2821 of 2023 which reads as under:-

"Heard Shri Ravi Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.

This second bail application has been moved by the accused/applicant- Sunil Kumar Mishra for grant of bail, in Case Crime No. 0227 of 2020, under Sections 147, 148, 149, 307, 302/34 I.P.C. and Section 7 Criminal Law Amendment Act, Police Station Jagdispur, District Amethi, during trial, as his first bail application has been rejected by this Court, vide order dated 09.11.2021 passed in Criminal Misc. Bail Application No. 2561 of 2021.

Learned counsel for the accused-applicant while pressing the bail application submits that the first bail application of the applicant was rejected on 09.11.2021. However, while rejecting the prayer of bail of the applicant, simultaneously a direction was given to the trial Court to make all out efforts to conclude the trial within one year from the date of order i.e. 09.11.2021 and the office was also directed to send a copy of the instant order to the trial Court concerned for compliance.

It is informed by learned counsel for the applicant that till now only three prosecution witnesses have been testified before the trial Court and also that the pace with which the trial is going on before the trial Court, is not expected to conclude in near future.

It is also submitted that the injuries which have been sustained by the deceased Umesh Mishra, by any stretch of imagination could not be sustained in the manner claimed by the prosecution, as the story of the prosecution is to the tune that firing was made from the roof of a house while the injuries recorded in the postmortem report of the deceased Umesh Mishra would reveal that the same have been inflicted by firing gun shot from even surface. Much emphasis has been laid by learned counsel for the applicant on the discharge summary of K.G.M.U., Lucknow, pertaining to the injured Kamlesh Kumar Mishra, wherein it is stated that he has sustained penetrating injury on back (multiple pellets) due to alleged history of firearm injury and it is submitted that the K.G.M.U., where the injured Kamlesh Kumar Mishra was treated have not found the injuries as caused by the firearm.

Similarly, with regard to the another injured Rajendra Mishra, it is submitted that he has stated in his statement recorded before the trial Court that he had sustained injury on his neck while in the injury report of injured Rajendra Mishra placed at Page No. 73 of the Paper book, an entry wound of the size of 0.5 x 0.5 cm. has been shown on his face, therefore, it appears that no incident, as claimed by the prosecution had occurred and due to the previous enmity the applicant and other co-accused persons have been falsely implicated.

It is also emphasized that the deceased as well as the other two injured persons have been admitted in the hospital at different timings and no explanation of the same has been given. The applicant is in jail in this case since 02.07.2020 and despite order of this Court, the trial has not concluded and the applicant is not having any criminal history. Thus, he be granted facility of bail.

Learned A.G.A. on the other hand submits that it is a case where one person has lost his life and other two have sustained injuries and all three (deceased and two injured persons) have sustained firearm injuries and, therefore, having regard to the statements of the two injured persons recorded before the trial court, the applicant is not entitled for any discretion.

Having heard learned counsel for the parties and having perused the record, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 09.11.2021 passed in Bail No. 2561 of 2021. While rejecting the prayer of bail of the applicant a direction was also given to the trial Court to conclude the trial within one year from the date of order. A copy of that order was also directed to be transmitted to the trial Court for compliance. However, it is informed that only three prosecution witnesses have been testified so far before the trial Court.

Perusal of the record would reveal that role of firing with gun of .12 bore has been assigned to co-accused Parashuram and by country made pistols to other co-accused persons including the instant applicant. However, it has not been described as to from country made pistol of which bore the gunshots have been fired by the accused persons excluding the Parashuram to whom the role of carrying and firing with 0.12 bore gun has been assigned. The deceased Umesh Mishra, as per the postmortem report, is shown to have sustained 06 injuries. The doctor in the postmortem report has stated that the death of the deceased has been caused due to 'hemorrhagic shock' as a result of 'antemortem firearm injuries'. The postmortem report would further reveal that the pellets have also been recovered from the body of the deceased. So far as the injuries sustained by the injured Kamlesh Mishra, which has been doubted by learned counsel for the applicant, to have been caused by firearm. At the first instance the injured Kamlesh Mishra was medically examined at C.H.C., Jagdishpur, wherein the injuries sustained by him are stated to have been caused by gun shot. However, in the discharge summary of the K.G.M.U., following observations has been written:-

"Admitting Diagnosis: Penetrating injury on back (multiple pellets) with laceration over right mid axillary region due to alleged history of fire arm injury."

Learned counsel for the applicant has interpreted the above observation of the K.G.M.U., Lucknow as that the injury to the injured Kamlesh Kumar Mishra has not been caused by firearm. I am not in agreement with the view adopted by learned counsel for the applicant.

The observation or the diagnosis part of the supplementary report of K.G.M.U., Lucknow, with regard to the injured Kamlesh Kumar Mishra prepared while discharging him, is to the tune that the penetrating injury sustained by this injured on his back is containing multiple pellets with laceration and has been caused due to alleged history of firearm injury and by any stretch of imagination it could not be construed to mean that no firearm injury was evident at the time of the admission or discharge of the injured Kamlesh Kumar Mishra, as on two occasions in this supplementary report, which has been doubted by learned counsel for the applicant, it is shown that the multiple pellets with laceration have been found on the back of the injured.

The other injured Rajendra Mishra, as per his medical examination report, prepared at C.H.C., Jagdishpur, is shown to have sustained injury on left side of his face i.e. 5 cm. away from left angle of his mouth. Distance of 5 cm. away from left angle of mouth in normal construction would mean that the angle which is going away from the left side of the mouth towards the neck or away from the mouth.

Thus, without entering into further discussion, with regard to the submissions made by learned counsel for the applicant, as the same may affect the discretion of the trial Court at the time of appreciating the evidence. Suffice is to say that in broad spectrum the theory of the prosecution was to the tune that the applicant and other co-accused persons had fired on the deceased and two injured persons. Co-accused Parashuram has been assigned the role of firing with 0.12 bore gun. The other co-accused persons have been assigned the role of firing with country made pistols. However, the country made pistols have not been recovered from any of the applicants, but the injuries which have been sustained by the injured persons as well as by the deceased may certainly be caused by the firearms.

Thus, keeping in view all the facts and circumstances of the case, I am not inclined to accept the prayer of bail of the applicant. Thus, the second bail application of the applicant is also rejected."

5. Sri Avneesh Kumar Shukla, learned counsel for the complainant has further submitted that the role of firing with .12 bore gun has been assigned to co-accused Parasuram Misra and by country-made pistol to two other co-accused including the applicant. The deceased Umaesh Misra received six injuries as per postmortem report and the deceased died due to hemorrhage and shock as a result of antemortem fire arm injury. The postmortem further indicates that pellets have been recovered from the body of the deceased. He has also submitted that the injuries received by the deceased and by the injured persons are corroborating with the prosecution case which can be caused by a weapon assigned to accused. learned counsel for the complainant has also stated that there are three injured persons, who have supported the prosecution case and the role of the applicant is at par with the case of co-accused persons, namely, Sunil Kumar Mishra and Dharmendra Kumar Mishra whose bail applications have been rejected by this Court, as stated above, therefore, the applicant is not entitled for bail.

6. Sri Shani Pratap Singh, learned A.G.A. for the State has also adopted the arguments advanced by Sri Avneesh Kumar Shukla, learned counsel for the complainant.

7. After hearing learned counsel for the parties and looking into overall facts and circumstances of the case as well as the argument that the bail applications of co-accused persons, namely, Sunil Kumar Mishra and Dharmendra Kumar Mishra having similar role, are rejected by this Court, the argument that deceased -Umesh Misra received six injuries which could have been caused by the weapon assigned to the applicant and the argument that the applicant has been named in the F.I.R. alongwith other co-accused, whose role of firing has been assigned and the postmortem report is corroborating with the prosecution case, therefore,I am of the opinion that the applicant is not entitled to be released on bail.

8. Accordingly the bail application of the applicant- Anjani Mishra Alias Vikas is rejected.

Order Date :- 27.09.2023

dk/

(Brij Raj Singh, J.)