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Luxman v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 2916 of 2003  RD-AH 7860 (20 December 2005)
Crl. Misc. Bail Application No. 2916 of 2003
Lakshman .....Vs.....State of U.P.
Crl. Misc. Bail Application No. 3229 of 2003
Manish alias Pappu .....Vs.....State of U.P.
Hon'ble Alok Kumar Singh, J.
Heard Sri Daya Shanker Misra, Advocate learned counsel for the applicants and the learned A.G.A. for the State. The bail applications moved by Lakshman (Crl. Misc. Bail Application No. 2916 of 2003) and Manish alias Pappu (Crl. Misc. Bail Application No. 3229 of 2003) arising out of same case Crime No. 662 of 2002 under Section 302 IPC, Police Station Kotwali, District Ghaziabad are being taken up together for convenience. Both these applications were earlier disposed of by this Court's order dated 26.6.2003 (passed by another Hon'ble Judge) which has been set aside by Hon'ble Supreme Court vide order dated 29.8.2005, passed in Crl. Misc. Bil Application Nos.1099 and 1100 of 2005 with a request to decide both the cases afresh within one month from the date of receipt of the copy of the order ( received here on 13.9.2005). Thereafter these cases were listed on 24.9.2005, 29.9.2005, 20.10.2005, 11.11.2005, 17.11.2005 and 28.11.2005 before other Hon'ble Judges but could not be taken up due to one reason or the other. Ultimately after concluding arguments on 5th and 6th December, 2005, it was reserved for orders.
The prosecution case, in brief, is that in the year 2002 complainant Ajai Sharma's brother Ajit Sharma supported an independent candidate Anil Swami against Manish alias Pappu ( accused applicant), in a corporation election, wherein Manish alias Pappu lost. Due to this Manish alias Pappu started having enmity with Ajit (deceased). On 27.11.2002 at about 10.20 p.m. when the complainant alongwith his brother Ajit (deceased) came on the main street after crossing Ghantaghar for a walk, one Gopal son of Prabhati, resident of Rihpalpuri and Subhash son of Chhotey Lal, resident of Gautamnagar met them. The complainant started talking with them while his brother Ajit went two steps forward. Suddenly one white Maruti car came from behind and stopped. Pappu alias Manish and his companion Lakshman ( both accused) and two more youngsters alighted from the car and opened fire upon the complainant's brother indiscriminately with an intention to kill him. After receiving fire arm injuries his brother fell down by the side of the road. Sufficient street light was available there in which Manish alias Pappu and Lakshman (both accused applicants) were recognized. They were known from before also. The remaining two companions can be identified if they are brought before the complainant and witnesses. A police mobile van (Chetak-1) also reached on the spot in which complainant's brother was carried to the Government hospital where the doctor declared him dead. Thereafter a report was lodged at 11 p.m. at Police Station Kotwali situated at a distance of 4 furlongs from the place of occurrence.
In the post mortem 14 ante-mortem injuries were found comprising 6 entry wounds 5 exit wounds and three abrasions. The cause of death was ante-mortem injuries.
As against the genuineness of the prosecution case and supporting evidence, it was argued that the two unknown companions could not be ascertained till date. Further it can not be said with certainty that as to whether the victim died from the shots made by both the applicants or by the two unknown companions. According to version of FIR, Maruti car allegedly came from behind but the fire arm injuries have been found on the front side of the deceased which indicates that the occurrence did not take place in the alleged manner. In respect of ante-mortem fire arm injuries it was argued that the alleged distance of firing shots as shown in site plan was 3 paces i.e. 6-7 feet and in that case blackening could not have been caused as was found in some of the fire arm injuries of the deceased. Further there is no explanation in respect of fire arm injuries not having blackening etc. while shots are said to have been fired from same distance. It was also quite unnatural that within 40 minutes of the incident a report comprising two pages was written and lodged at the police station. The learned counsel also referred to Annexure-3 to the application wherein it is mentioned that at 10.18 p.m. one phone call from unknown person was received on Phone No. 100 in the Control Room about the incident, whereupon Mobile van (Chetak-1) was asked to reach on the spot. At 10.25 p.m. it gave its location after reaching on the spot and also reported that Ajit Sharma has been killed which suggests that no public witness has seen the occurrence as alleged. It was further pointed out that as per entry made in the emergency register of the hospital the deceased was brought by H.C.P. Mange Lal and not by the complainant who allegedly saw the occurrence and also accompanied the victim to the hospital. In this regard learned A.G.A. however, pointed out towards Annexures 2 to 4 to the Counter-affidavit where in the police official and the doctor who made entries, have explained about entries and also told about the presence of complainant and few others with the deceased in the Van/hospital. The learned counsel for applicants also pointed out about the absence of taking into possession of any blood stained clothes of complainant and emphasized that had the complainant been present and taken his brother (Victim) to hospital he would have certainly received some blood stains on his clothes. But all such points can be taken into consideration when substantive evidence is adduced at length, not at this stage. Otherwise also these grounds do not appear to be sufficient to grant bail at this stage specifically when the applicants are named in the FIR which was promptly lodged. The post-mortem report also prima-facie corroborates the prosecution story. There was also sufficient street light (as mentioned in the FIR) in which the witnesses could have easily seen the incident and recognized the real culprits. Both the applicants named in the FIR were also said to be known from before which makes recognizing more easy. In addition to the informant there are two more witnesses of the occurrence.
Learned counsel for the applicants also referred to Annexure-4 of the affidavit wherein criminal history of the deceased comprising 10 cases is mentioned. But that too is not a sufficient ground for granting bail.
In he context of reasonable apprehension of tampering with the prosecution witnesses, the criminal history of both the applicants as contained in Annexure-1 to the counter-affidavits of both the applications is also required to be considered. Applicant Lakshman has following criminal history:-
Case Crime No. Under Sections Police stations
1. 483/98 504/506 IPC Sihanigate,Gbaziabad.
2. 430/98 307 IPC -do-
3. 309/98 302/307 IPC Kanpur Sadar, Kanpur
4. 227/92 307/302 IPC Kavinagar, Ghaziabad.
5. 488/98 2/3 Gangster Act Sihanigate,Gbaziabad.
In para 3 of the rejoinder-affidavit it has been averred that the applicants have been falsely implicated in these cases under the pressure of Sri Rajpal Tyagi who is a Cabinet Minster in the State.
Case Crime No. Under Sections Police stations
1. 430/98 307 IPC Sihanigate,Gbaziabad.
2. 227/92 307/302 IPC Kavinagar, Ghaziabad.
3. 273/94 147, 148, 307 IPC Sahibabad,Ghaziabad.
4. 238/96 3 / 4 Goonda Act. Sihanigate,Gbaziabad.
5. 483/98 504, 506 IPC Sihanigate,Gbaziabad.
6. 309/98 302/307 IPC Kanpur Nagar,Kanpur.
Similar averment has been made in para 3 of the rejoinder-affidavit of the bail application of this applicant also.
The contention of false implication due to enmity is often raised by the accused. But they have not claimed that any of the aforementioned criminal cases is not pending or either of the applicants has been acquitted in any of these cases. Each of them are facing atleast two major offences of murder and one case of attempt to murder beside other criminal cases. Therefore, in the context of reasonable apprehension of tampering with the prosecution witnesses, the factum of criminal history of aforesaid cases of several years in respect of both the applicants also appears to be an impediment in granting bail to them, at this stage.
The learned A.G.A. vehemently opposed both the bail applications.
The factors of the prima-facie satisfaction of the Court about the proposed evidence in support of the charge, nature of accusation and severity of punishment in the case of conviction, genuineness of the prosecution case and reasonable apprehension of tampering with the witnesses and apprehension of threat to the complainant were duly considered. Keeping in view the factual matrix of the matter and the aforesaid factors, without prejudice to the merits of the case, I do not find sufficient ground to grant bail to either of the applicants at this stage.
The applications are accordingly rejected.
Dt: December , 2005
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