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Vikas Shukila @ Lalji Shukla v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 9000 of 2006  RD-AH 12450 (27 July 2006)
Court No. 19
Criminal Misc. Bail Application No. 9000 of 2006
Vikas shukla alias Lalji Shukla
Son of Sri Subhash Chandra shukla............. ........Applicant
( In Jail).
State of U.P. ......... Opp. Party.
Hon'ble Barkat Ali Zaidi, J
1. Heard Sri Maqsood Ahmad, learned counsel for the applicant Vikas Shukla alias Lalji Shukla, learned A.G.A. for the State and Sri V.K. Kushwaha for the complainant.
2. Wounds seem to be having a Hey-day.
3. In the metropolitan city of Kanpur in the early hours of night around 8 O'clock on December 8, 2005, the applicant accused with his companion Kamal Prakash Shukla alias Suddan and other persons arrived at the shop of the complainant in Indira Nagar, Kanpur within an area of police station Kalyanpur and shot dead the complainant's elder son, Ashwani Kumar Gupta aged about 35 years with a gun. He was taken to the hospital where he succumbed to the injuries.
4. The first information report of the incident was lodged soon thereafter at half past ten in the night, in which, the accused-applicant and his brother Kamal Prakash Shukla have been named, while the other accused were not named.
5. The reason given for the murder in the first information report is that on an earlier occasion, both the accused had come to the shop of the complainant and made certain purchases but did not pay the price, and on demand raised about the same, they said that they are not accustomed to pay the price, they purchase.
6. The foremost argument of the learned counsel for the applicant was that the accused Kamal Prasad Shukla has been granted bail by this Court vide order dated 3.10.2006 and on the ground of parity, the applicant should be granted bail.
7. The dubious principle of parity is one of the most abused shibboleths in our legal system. Every individual has a part to play in a crime, which is, ninety times out of hundred different, from the role played by the others. It is very rare to see completely identical actions, which may be a square peg in a square whole.
8. In the present case, there is manifest difference in the role assigned to the two brother accused, inasmuch as in the first information report, which is earlier statement of the crime, it is noted that it was the accused-applicant who fired, in consequence whereof, the deceased died. The other accused is not named in the first information report as having killed the deceased. Though, there is allegation in the first information report that he did fire. Parity does not , therefore, exist.
9. Another argument advanced from the side of the applicant was that in the statement of younger brother of the deceased , recorded by the police under Section 161 Cr.P.C., it has been mentioned that the injury was caused from the fire of Kamal Prasad Shukla, which killed the deceased, and, as such, there is major contradiction in prosecution version. This provides suspicion of police help to the accused, but, it has been repeatedly held by the Supreme court that the shortcomings and deficiencies in the investigation should not entitle the accused to any benefit. If the investigation is maladroit or perfunctory, it is for the Court to look into the matter and make sincere efforts to discover the truth and , if necessary, call other witnesses. In any case, the diversions in the statements and the consequence thereof, will have to be considered at the time of trial on an over all view of the evidence and the circumstances. It would not be appropriate to grant benefit to the accused of any contradictions at this stage.
10. Another argument from the side of the accused-applicant was that according to the prosecution version, the gun from which the fire was made on the deceased has been recovered, but according to the counsel for the accused, the nature of injuries sustained by the deceased, as given in post mortem report , shows that the fire was made from a country made pistol and not from a gun. The sustainability of this argument is dependent upon the Ballistic Expert Report and unless the Ballistic Expert says, as suggested by the counsel, it would be inappropriate to accept the lay man's argument about the same.
11. Still another argument from the side of the accused was that the first information report mentions that the deceased was shot at the right side of the chest while the post mortem report mentions an exit entry wound on the back of the deceased. We would refrain from saying anything which impinges on the trial, and the only thing, which may be stated here , is that the question whether he was shot at the back or in the chest, is of secondary importance but the real question is whether, deceased was actually shot at by the accused, irrespective of the question, as to where, the injury was caused.
12. Bail application rejected.
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