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Rakesh Sharma v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 9465 of 2006  RD-AH 10346 (25 May 2006)
Court No. 54
CRIMINALMISC. IIND BAIL APPLICATION NO. 9465 OF 2006.
Rakesh Sharma Vs. State of U.P.
Hon. Mrs. Poonam Srivastava, J.
Heard Sri P.N. Mishra, Senior Advocate, assisted by Sri Apul Mishra, learned counsel for the applicant and learned A.G.A. for the State.
This is second bail application of the applicant. The first bail application was rejected on 27.3.2006.
The submission on behalf of the applicant is that according to the narration in the first information report, eight accused including the present applicant had arrived at the place of occurrence armed with pistol, rifle, DBBL gun and country made pistol. The applicant is alleged to have caused injury from his pistol to the deceased. According to the prosecution, the admitted case is that the licensed pistol was used by the applicant for committing the crime. The police initiated proceedings for cancellation of license of his pistol which was used for committing the murder. An application was given by the S.H.O. Police Station Bulandshahar to the District Magistrate, Ghaziabad after investigating and inquiring the matter that the licensed pistol was used by the applicant and on the basis of police report, the license of the applicant has been cancelled by the Additional District Magistrate (City), Ghaziabad. The application under Section 17 of the Arms Act is annexed as Annexure-2 and the order of the District Magistrate, Ghaziabad is annexed as Annexure-3 to the affidavit filed in support of the bail application.
A report of ballistic expert was brought on record in the first bail application along with rejoinder affidavit. According to the report, the pistol was not used as the bullet sent to the ballistic expert was reported not to be fired from the pistol of the applicant. On its basis, the submission on behalf of the applicant is that since it is an admitted case of the prosecution that the licensed pistol was used in the commission of the crime, this stands completely belied by report of the ballistic expert.
The submission of the counsel for the applicant has been disputed by the learned A.G.A. that the report of the ballistic expert was brought on record with the first bail application, therefore, it can not be said a new ground.
The next argument on behalf of the applicant is that the specific case of the prosecution is, participation of eight accused including Lavkesh Sharma present at the time of occurrence. A certificate has been issued by the Niab Tehsildar, Shikarpur certifying that Lavkesh Sharma, Collection Amin, at the time of occurrence was present with him in village Barasau and making recovery of revenue dues. On the basis of this certificate, the accused Lavkesh Sharma has been exonerated.
Sri Mishra has placed reliance on a Division Bench decision of this Court in the case of State of U.P. Vs. Babu Singh and others, 1998 A.C.C. (37), 711 to the effect that in the event two accused persons were in jail on a particular date and time of incident and they have been falsely implicated, in such circumstances, the prosecution evidence looses its credit and becomes unworthy of acceptance. While passing this Division Bench decision, a number of decisions of the Apex Court was relied upon, Sahab Singh Vs. State of Haryana, ACC 1997 (35), 335, Dharam Singh Vs. State of Punjab, U.P. Criminal Rulings 1993, 468 and State of U.P. Vs. Moti Ram and another, 1990 CAR, 257 (SC).
The third submission is that the applicant is in jail since more than one year and trial has not commenced till date. Since all the other co-accused have been granted bail, the applicant is also entitled for bail.
After giving careful consideration to the arguments advanced by learned counsel for the parties and on perusal of the order of the District Magistrate, Ghaziabad cancelling the license of the applicant on a clear conclusion that the pistol was used in the crime, it is clear that the report of ballistic expert gives gout altogether a contradictory story. It is also a fact that the trial has not yet commenced and all the other co-accused have been granted bail. In the circumstances, the applicant is also entitled for bail. The observations made above shall not be treated to be an opinion on merit. The bail application of the applicant is allowed on the following conditions:-
a. the applicant shall not tamper with evidence or intimidate the
b. the applicant shall report to the court of learned C.J.M. concerned in the first week of each month. In default, the bail granted to the applicant shall be deemed cancelled.
Let the applicant Rakesh Sharma be released on bail in Case Crime No. 36 of 2005, under Sections 147, 148, 149, 302, 506, 504/34 I.P.C. and Section 2/3 U.P. Gangsters and Anti-Social Activities (Prevention) Act, Police Station Ahmedgarh, District Bulandshahar on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned.
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