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Balbir v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 15739 of 2006  RD-AH 13831 (21 August 2006)
Court No. 54
CRIMINAL MISC. BAIL APPLICATION NO. 15739 OF 2006
Balbir Vs. State of U.P.
Hon. Mrs. Poonam Srivastava, J.
Heard Sri D.N. Wali, learned counsel for the applicant, Sri Jai Narain Advocate for the first informant and learned A.G.A. for the State.
The submission on behalf of the applicant is that it is a case of custodial death but the police has tried to implicate the applicant in the offence. According to the narration in the first information report, the deceased Raj Kumar son of Raj Pal who was an accused in case Crime No. 74 and 75 of 2006, was going on the rickshaw along with complainant and constable Rajvir Singh. When the rickshaw reached near old State Bank, the applicant along with Sunil Yadav and Prem Pal and two unknown persons were following the rickshaw. All the six accused surrounded the rickshaw on which the deceased was sitting along with two constables including the complainant. All of them opened fire which resulted in the death of the deceased on the spot at 5.30 P.M. Sri D. N. Wali has emphatically argued that there are six fire arm injuries mentioned in the post mortem report. Only with a view to substantiate the six injuries, the participation of six assailants was introduced in the report. Later after the post mortem was conducted, it transpired that six injuries were as a result of three shots. Three were wound of entry and other three were wound of exit. The next submission is that none of the constables sitting on the either side of the deceased received any injury whatsoever. The rickshaw puller has also not been examined. No injury has been received by him, besides the fact that no recovery memo of rickshaw has been prepared. Assuming the prosecution story to be correct, there ought to have been bullet marks on the rickshaw. It has been argued next that an application was moved on behalf of the applicant for summoning the log sheet of the wireless set to establish that the wireless message dated 17.4.2006 did not mention any name of the accused whatsoever. The said application was rejected on 24.6.2006. Annexure-9 to the affidavit is the rejection order to the said application. Another application was moved on 27.4.2006 claiming identification by the applicant who is said to be Mama of the accused Sunil. This application was rejected on the same day. It was also argued that crime No. 940 of 2002, under Section 302/34 I.P.C. is a case wherein Rahul and Anoop are named as accused persons by Rajbir Singh in the said first information report. Their fathers are constables Vijai Singh and Shyam Singh who were posted at Etah and pressurized the family members not to depose against them. It is also submitted that the deceased Raj Kumar had criminal history and it is very improbable that an accused in custody would not be handcufft while being taken on rickshaw. On this basis the entire prosecution story is said to be concocted and exaggerated. The statements of the witnesses and complainant under Section 161 Cr.P.C. have been annexed in support of his contention.
Counsel for the first informant and learned A.G.A. have disputed the arguments advanced by Sri Wali. It is submitted that the occurrence has taken place at 5.30 P.M. in the month of April, 2006 and there are eye witness account. Since the place of occurrence has not been disputed, therefore it can not be said to be custodial death.
After hearing the counsel for the respective parties and going through the record, I am of the view that the various submissions made by the counsel for the applicant are circumstances, which can be properly adjudicated after the evidence is recorded during the trial. Since the applicant is named in the first information report and has been assigned specific role of firing, it can not be ascertained at this stage as to whose shot caused the three fatal injuries on the body of the deceased. In the circumstances, this bail application does not merit for grant of bail at this stage. The bail application is rejected.
The learned Sessions Judge, Etah is directed to expedite and conclude the trial as expeditiously as possible, preferably within a period of six months from the date, a certified copy of this order is produced before him without granting undue adjournment to either parties unless and until compelling circumstances arise to do so.
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