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RAKESH KUMAR SINGH @ PUPPU versus STATE OF U.P.

High Court of Judicature at Allahabad

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Rakesh Kumar Singh @ Puppu v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 12592 of 2006 [2006] RD-AH 13528 (17 August 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

   Crl. Misc. Bail Application No. 12592 of 2006

Rakesh Kumar Singh @ Pappu Singh . . . . . . .  . . . .  . . .  . Applicant.         Versus

State of U.P.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    Opp.Party.

                              And

     

 Crl. Misc. Bail Application No. 12593 of 2006

Dharmendra Kumar Tiwari  . . . . . . .  . . . . .  . . .  . . .  . . Applicant

Vs.

State of U.P.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . .  Opp.Party.

 ---

Hon'ble R.K.Rastogi,J.:

Both these  applications have been moved  in same case crime no. 536 of 2005 under sections 147, 148, 149, 307 , 302, 504 and 506 I.P.C. police station Parshurampur district Basti.

The prosecution case starts  with F.I.R. lodged by  Vinod Kumar Yadav at police station Parashurampur on 20.10.2005 at 4.30 A.M.  It is stated therein that Vinod Kumar Yadav resides at village Padri Babu police station Parashurampur district Basti. Accused Arjun Singh  of same village  was contesting election for  the membership of Zila Panchayat  and he has enmity with Arjun Singh on account of party Bandi. In the  night  in between 19/20.10.2005 at about 2 A.M. Gokul resident of the same village was going from the  house of Vinod Kumar Yadav to his house  after seeing picture. When he reached  at a distance of 25 yards from the house of Vinod Kumar Yadav, accused Arjun Singh, his son Sanjay Singh, Rakesh Singh alias Pappu and Jai Prakash Singh residents of Padri Pur Babu,  Ravindra Maurya, Satya Narain alias Rangoo Pandey residents of village Chirai Khandava, Arjun Singh's relation Bishal,  and Dharmendra Tiwari residents of village Kambharpur Tharuwa P.S. Chhapia district Gonda, Vinai Kumar Singh of Manakapur, Raju resident  of village Malisultanpurwa, Shailendra Kumar Jaiswal resident of Manakapur,Vijai Kumar Misra resident of village Semra Shankhwar police station Nawabganj, Rajaram Prajapati resident of  village Karaundi police station Manakapur, Anuj Kumar resident  of Manakapur, Shiv Prasad resident of Dhurwa, Ram Kewal Sahni, Ram Dhan,  Salikram and  Ram Nawal residents of of Bangawan  Suddhu resident of village Dubauli, who had concealed themselves  near the house of Dhunka Yadav,  came out. They obstructed Gokul,  started to abuse him stating that he was supporting their opponents, and so they would not spare him. Gokul cried for help. Then Vinod Kumar Yadav, his father Hira Lal, brother Ashwani Kumar and cousin brother Durga Yadav  etc. went to that place to protect Gokul and they asked Arjun Singh and his companions not to abuse. Then all of them stated  "Goli mardo  salon ko" and  Arjun Singh who was having rifle in his hand, Sanjay Singh and Rakesh Singh who  were having gun s in their hands and Dharmendra Tiwari who had  a country made pistol in his hand fired  at them. Consequently, Hira Lal and Ashwani Kumar received fire arm injuries and they fell down. Thereafter the accused ran away. Then they took Hira Lal and Ashwani Kumar to district hospital Basti for treatment on a Maruti Car, but Hira Lal died  in the way. Then Ashwani Klumar was got admitted in the  hospital. This incident was witnessed by Vinod Kumar etc. in the moon light and in the light of torches and electricity. It was, therefore,  prayed that action be taken in the matter.

The applicants have alleged that they are innocent and  have been falsely implicated in this case. They have given a cross version of this incident contained in the application moved by the accused Sanjay Singh before the Addl. Chief Judicial Magistrate, Basti under section 156(3) Cr.P.C. in which it was stated that  his father Arjun Singh was contesting election for membership of district Panchayat and his wife Renu Singh was contesting  for  the membership of Kshetra Panchayat in Padri Babu constituency and Shiv Pal Singh Yadav of the opposite party was also contesting the election for the membership of Khsetra Panchayat in the same constituency. In between the night of 19/20.10.2005 he along with  his companion Siya Ram Pandey, Ganga Ram, Ram Mani Tiwari, Ravindra Singh, Ganga  and driver of the  vehicle  had gone to contact villagers  for appointment of polling agents. After doing this work, they were returning back to their houses. At about 2 A.M. accused Shiv Pal Singh  having a gun in his hand,  Hira Lal Yadav having a lathi in his hand, Vinod Kumar Yadav, Durga  Yadav and Bablu Singh having country made pistols in their hands, Rajendra Singh, Ashwani Kumar, Tulsi Ram, Kesari, Gokul, Ram Laut Tiwari and  Brij Raj Singh having lathis and Dandas  were standing  infront of the house of Bankan Yadav towards south of the house of Jhinkan Yadav.  On seeing Sanjay Singh etc.  the above named accused persons uttered abuses  and questioned what they were doing there in the night and  further alleged that they were trying to influence voters  of the accused persons. It was further stated that Arjun Singh  had occupied the post of  Block Pramukh and  had also won the election of village Pradhan, but he shall not be  permitted to win this time. Shiv Pal Singh  said "Maro Salon ko zinda mat chhoro". Then Hira Lal  gave a lathi  blow  upon his head. Consequently,  his head got fractured and there was   profuse  bleeding. Shiv Pal Singh had put his  gun upon his chest. Sanjay Singh removed barrel of  the gun from his chest and then Shiv Pal Singh fired at him  and consequently he received fire arm injuries on his right palm and that very fire hit Hira Lal and Ashwani Kumar. The persons present there  cried for  protecting him and  upon  noise some other persons  from his house  also  rushed  there.  Shiv Pal Singh fired  at them also and then those  persons  also fired. They took  Sanjay Singh to his house in the  village. Thereafter Sanjay Singh's father  Arjun Singh took him to the police station and  gave a report  of the incident  in writing, and  on the advice of the Sub Inspector he took Sanjay Singh to a nearby hospital at Faizabad for treatment.

Sanjay Singh was given first aid in  a nursing home and thereafter  he was taken to  the government hospital , Faizabad but since no F.I.R. had been lodged by that time  and the  incident pertained to another district, he could not  be medically examined at that time  in the government hospital. Then Arjun Singh went to the police station  to obtain a copy of the F.I.R.  but the report was not written at the police station. Consequently, his medical examination could be conducted  in the government hospital on 21.10.2005. Since his report was not registered  at the police station he sent  a report  to the Superintendent of Police, Basti on 25.10.2005 by speed post, but  of no avail. Then  he again sent a letter to the Superintendent of Police by registered post on 28.10.2005, but no action was taken. On the other hand,  case crime no. 536 of 2005 was registered against them on the report of Vinod Kumar.  Then he moved an application before the Addl. Chief Judicial Magistrate, Basti on 7.11.2005 and on the basis of the order of the Chief Judicial Magistrate this case was registered under sections 147, 148, 149, 307, 504 and 506 I.P.C. against the accused  named in this application as court case no. 14 of 2006 on 31.5.2006.

It was submitted by the learned counsel for the accused-applicants that  taking this fact into consideration that it is a cross case  and there are injuries on both the sides,  bail should be granted to the applicants.

The learned A.G.A. appearing for the State and  the learned counsel appearing for the complainant submitted  that in this case Hira Lal  died as a result of fire arm injuries received by him and  Ashwani Kumar also received  fire arm injuries. He referred to postmortem report  of Hira Lal which reveals that there was a fire arm wound of entry 3 cm x 2.5 cm  on left side chest, blackening was present  around the wound and there were punctured wounds in an area 30 x 15 cm of the size of .2 cm to .5 cm, blackening  was present. Another fire arm wound described  in the postmortem report is multiple punctured wounds  on left upper  limb in an area 20 cm x 8 cm. Blackening was present around the wound. Small 34 pellets were recovered  from his left limb. 4 pellets from heart, 4 pellets from right limb and 5 pellets from liver  were also recovered. Cause of death was shock and haemorrhage  as result of  ante-mortem injuries. This postmortem was performed on 20.10.2005 at 4 P.M. and death had taken place about half day ago.

Ashwani Kumar  had  multiple punctured gun shot wound  on lower abdomen in an area of  30 cm x 30 cm, burning and blackening  were present around the wound. Size of the wound was 0.2 cm x 0.5 cm and 0.3 cm x 0.3 cm. Similar multiple fire arm punctured wounds were also present on the  chest, right fore arm, and right shoulder.

It was submitted  by the learned counsel for the prosecution that in this case there is prompt F.I.R. of the incident from the side of the prosecution and medical evidence of postmortem  report of Hira Lal  and injury report of Ashwani Kumar also support the prosecution version and the cross version is very much belated  as the application under section 156(3) Cr.P.C. was moved on 7.11.2005,i.e. After the lapse of 18 days from the date of incident,  and  this story  of cross case was maneuvered simply with  a view  to create  defence  of the accused  to obtain bail on the basis of  the theory of cross case and so bail should  not be granted to the accused on the basis of so called theory of cross case.

The learned counsel for the applicants submitted  in reply that  the accused had gone to the police station in the very night of the incident to lodge  the report but the report was not written and so applications were sent to  the Superintendent of Police, Basti on 25.10.2005 and 28.10-.2005 by speed post and registered post as stated in the application under section 156(3) Cr.P.C. and when no  action was taken by the police application under section 156(3) Cr.P.C. was moved. It was further alleged that Sanjay Singh from the side of  accused also received injuries in this incident and he was medically examined on 21.10.2005 at 9.30 A.M.  at  a primary health center in district Faizabad, and a perusal of his injury report  reveals that he had received one lacerated wound on right side forehead 5 cm x 0.5 cm x bone deep. Clotted blood was present there. He also had fire arm injury on his right  palm.  Blackening was present  on the thumb and index finger and clotted blood was also present. Phalanx of thumb & index finger were  missing.  X-Ray was also  performed and according to the X-Ray report distal phalanxes of thumb and index finger waere missing. This injury was found to be grievous  in the opinion of the doctor and was caused by fire arm. Injury on the head was simple  which was caused by blunt  object. The injuries were about one and half day old at the time of  medical examination.

It was submitted  by the learned counsel for the applicants that  the above medical examination of  Sanjay Singh  reveals  that he had received  the above injuries in this very incident and the prosecution has  not   explained as to how Sanjay Singh had received the injuries. He further contended that the injuries upon right palm  in which phalanx of index finger  and thumb were missing  as mentioned in the injury report of Sanjay Singh who was medically examined on 21.10.2005 at 9.30 A.M., lends support to the cross version of the accused persons and now it is immaterial that the  report of cross  version  was  registered at  a belated stage, takinmg this  explanation into consideration  that the   police  under the influence of  the party of Shiv Pal Singh Yadav  did not write  their report and did not take any action on the application sent to the Superintendent of Police on 25.10.2005 and on 28.10.2005 by speed post and registered post.

In this case, bail application no. 9660 of 2006 of co-accused Sanjay Singh was heard and decided by Hon'ble  Ravindra Singh,J. vide his order dated 6.4.2006. He rejected the bail application. It was submitted by the learned counsel for the prosecution that the case of the present applicant  is similar to that of Sanjay Singh because there is allegation against Sanjay Singh and Rakesh Singh  that they were armed with gun at the time of incident  and against Dharmendra Tiwari  that he was armed with a country made pistol at the time of incident and they had fired from guns and pistol, and since postmortem report of Hira Lal  and injury report of Ashwani Kumar reveal  that the injuries of those persons were caused  by pellets, the case  against  all these three persons is similar  and so bail should not be granted  to the applicants.

On the other hand,   learned counsel for the accused applicants submitted  that in this case  co-accused Arjun Singh, father of Sanjay Singh has been granted bail by Hon. Vinod Prasad,J. vide his order dated 2.8.2006 passed on Bail Application no. 707 of 2006 so the present applicants  should also be bailed out.

The learned counsel for the prosecution, however, submitted  before me that according to the prosecution case, Arjun Singh was armed with a rifle at the time of  incident and had fired from that rifle and since there is no rifle injury upon any person , the case of Arjun Singh  is distinguishable,  so  he was granted bail on this  ground and   the present applicants cannot  claim parity with Arjun Singh. He further submitted that the explanation given by the accused  in cross case that fire done by  Shiv Pal Singh Yadav  upon right  hand of Sanjay Singh after blowing his thumb and index finger had hit  Hira Lal and Ashwani Kumar  resulting into death of Hira Lal and  injuries to Ashwani Kumar is a totally false allegation  and the injuries to Hira Lal and Ashwani Kumar  could  never be caused in the aforesaid manner and so  bail should not be granted to the accused on the basis of such a false defence of cross case.

The learned counsel for the applicants further submitted that even if    the aforesaid   explanation  regarding injuries of Hira Lal and Ashwani Kumar   in the cross case is  not taken to be true, it is to be seen  that the prosecution has also not  explained  as to how Sanjay Singh had received injuries in this incident and this fact goes to show that the prosecution has not come with clean hands and  is concealing some material facts. He further submitted that F.I.R.  of this case  is also doubtful because it  has been stated in the F.I.R. that  Hira Lal and Ashwani Kumar were  being taken to district hospital Basti in a Maruti Car and Hira Lal died in the  way and thereafter Ashwani Kumar was admitted in the hospital and Vinod Kumar Yadav went to the police station and lodged the report. He pointed out that this F.I.R. has been registered at the police station  on 20.10.2005 at 4.30 A.M., but according to the injury report of Ashwani Kumar he was medically examined on 20.10.2005 at 3.50 A.M. and he had been brought to hospital by Constable Rajesh. He submitted that in this way, there is contradiction in the F.I.R. and the  above injury report because according to the F.I.R. Ashwani Kumar was taken direct to the district hospital from the place of incident and according to the medical report of Ashwani Kumar he was taken  by police constable Rajesh. He submitted that if Ashwani Kumar was brought to the hospital after  going to the police station having been taken by the police constable Rajesh from the police station, then the  medical examination of Ashwani Kumar  should  have taken place after registration of the F.I.R. but the F.I.R. was registered  at 4.30 A.M.  and Ashwani Kumar had been medically examined at 3.50 A.M.

I have  heard both the parties  at length on all these points and also had an opportunity of going through  both the orders passed by Hon. Ravindra Singh,J. on the bail application of Sanjay Singh as well as of Hon'ble Vinod Prasad,J.  on the bail application of  Arjun Singh.

After giving due consideration to  the submissions made by both the parties, I am of the view that the present applicants are not entitled to any benefit from this fact that bail has been granted to co-accused Arjun Singh because as per the prosecution case he was armed with a rifle at the time of incident and the injuries received by Hira Lal and Ashwani Kumar are of pellets which could not be caused from rifle and since the allegation against the present applicants are that Rakesh Singh was armed with a gun and Dharmendra Tiwari was armed with country made pistol, they cannot claim bail on the ground of parity with Arjun Singh.

The allegation made in the cross version  that the fire done by Shiv Pal Singh Yadav had hit Hira Lal and Ashwani Kumar after causing injury to thumb and  index finger of Sanjay Singh also does not inspire any confidence.

The learned counsel for the applicants, however, pressed the   following more  points  in favour of the applicants:

(1) Non-explanation of injuries of Sanjay Singh from the   side of prosecution which are neither superficial nor self inflicted.

(2) Discrepancy regarding time of  visit of prosecution   witnesses to the district hospital  and the police station as pointed out above.

(3) The prosecution allegation that 21 accused  persons out of whom 16 persons  residing at  nine other villages as described in the F.I.R. collected  at village Padri Babu near the house of Nankan Yadav at 2 A.M. in the night does not inspire confidence. The applicant Dharmmendra   Kumar Tiwari is resident of village Kambharpur Tharua of another district Gonda.

(4) There was enmity of Arjun Singh,  and his daughter-in- law Renu Singh wife of Sanjay with Shiv Pal Singh who were   contesting the election . There was no enmity of Rakesh Singh and Dharmendra Kum,ar Tiwari with the deceased  and his family members nor did they have  any motive to commit the offence.

(5) Taking into consideration the wide area  of  dispersal of pellets as well as  blackening  and burning around the wounds of deceased Hira Lal and injured Ashwani Kumar  these injuries   could not have been caused from a standard gun ( which was in the hand of Rakesh Singh as per prosecution case) and they could have been caused from a country made fire arm.

(6) It is not clear as to who out of  Sanjay Singh, Rakesh Singh and Dharmendra Kumar Tiwari had allegedly caused fatal injuries to Hira Lal and so bail should be granted to the applicants.

Without expressing any opinion on the merits of the case  and  taking into consideration the aforesaid submissions made on behalf of the  applicants, I am of the  view that the applicants deserve  to be bailed out.

Let the applicants, Rakesh Kumar Singh @ Pappu Singh and Dharmendra Kumar Tiwari  be released on bail on their each executing  a personal bond and furnishing two sureties each in the like amount to the  satisfaction of the court concerned. They are further directed to report to the police station concerned once in a month at the  time and  date to be fixed by the Officer Incharge  of the police station. One of the sureties  of each applicant one would be  his near relative besides the accused arrested in this case. They will not tamper with the prosecution  evidence and will co-operate with the court in the trial of the case. They are further directed no to seek unnecessary adjournment in the case.

Dated:

RPP.


Copyright

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