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2020 Supreme(All) 800
IN THE HIGH COURT OF ALLAHABAD
SAMIT GOPAL, J.
Moti – Appellant
Versus
State of U.P. – Respondent
Criminal Misc. Bail Application No. 14299 of 2020
Decided On : 28-07-2020
Advocate Appeared:
For the Appellants : Vivek Kumar Singh, Mayank Yadav.
For the Respondent: Anjani Kumar Raghuvanshi.
Headnote:
Code of Criminal Procedure, 1973 – Sections 156, 439 – Penal Code, 1860 – Sections 147, 148, 149, 307, 302 and 506 – Bail – Bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Moti, seeking enlargement on bail during trial in connection with Case Crime, under Sections 147, 148, 149, 307, 302 and 506 I.P.C. registered at Police Station Modinagar, District Ghaziabad –
Finding of the Court:
Counsel for the first informant opposed the prayer for bail and argued that filing of the application under Section 156 (3) Cr.P.C. by Smt. Nisha was an afterthought just in order to create a defence in the present matter. – It is argued that the Apex Court, while dismissing the Special Leave to Appeal has categorically clarified that the same is being refused to be entertained in the peculiar circumstances of the said case. – It is thus argued that the applicant is not entitled to the claim of parity with co-accused. – Further it is argued that the present case is a case in which one person received injury and died and there is one injured and the injuries received by Ankit and Akshay are self-inflicted injuries. – Nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. –
Result: Bail Application Allowed
JUDGMENT :
SAMIT GOPAL, J.
1. Heard Sri. Vivek Kumar Singh, learned counsel for the applicant, Sri. Anjani Kumar Raghuvanshi, learned counsel for the first informant and Sri. Manu Raj Singh, learned A.G.A. for the State and perused the material on record.
2. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Moti, seeking enlargement on bail during trial in connection with Case Crime No. 375 of 2019, under Sections 147, 148, 149, 307, 302 and 506 I.P.C. registered at Police Station Modinagar, District Ghaziabad.
3. The prosecution case as unfolded in the First Information Report lodged on 17.04.2019 at about 21:54 hrs at P.S. Modinagar, District Ghaziabad by Vikas son of Bijendra Singh for an incident which took place on 17.04.2019 at about 5.00 p.m. is that labours were sowing the crop of sugar-cane his field and when he was returning from his field in the evening then at about 5.00 p.m. he saw the accused persons namely Akshay and Sunny both sons of Jitendra, Ankit and Moti both sons of Satbir and Bhanu entering in the house of Vicky Tyagi and then he heard the sound of firing from inside the house to which he entered in the house of Vicky Tyagi and saw all the accused person brandishing their weapons, threatening of dire consequences and running away from there. He saw his brother-in-law, Dipendra @ Dippan having received several gun shot injuries and Pratham who was inside the house has also received firearm injury in his leg. The first informant is then said to have taken Dipendra @ Dippan and Pratham to Jeevan Hospital for their medical aid wherein Dipendra @ Dippan was declared dead. It is stated that the accused persons are persons of criminal intent and bad nature and they collectively fired indiscriminately upon Dipendra @ Dippan and murdered him. It is further stated that Ruby and Vinod and various other persons have seen the incident. It is then stated that apart from the named accused persons other persons may also have joined them in the said assault. He then states that he has come to the police station from the hospital for getting the FIR registered. The said application for getting the FIR registered is scribed by one Praveen son of Madan Singh.
4. Dipendra @ Dippan died and the doctor conducting the postmortem examination opined that the death is as a result of shock and haemorrhage due to ante mortem gun shot injury.
5. Learned counsel for the applicant argued that the present case is a cross case. He has drawn the attention of the Court to Annexure-6 of the affidavit in support of the bail application which is the FIR of Case Crime No. 0511 of 2019, under Sections 147, 148, 149, 307, 504, 506 I.P.C. registered at P.S. Modinagar, District Ghaziabad on 26.05.2019 at about 23:54 hrs for an incident which took place from 15.04.2019 to 17.04.2019 at 17:00 hrs (5.00 p.m.) by Smt. Nisha wife of Jitendra against Vikas, Vicky Tyagi, Sappu Gujar, Pratham and 03 unknown persons. The said FIR has been registered on the basis of an application dated 06.05.2019 moved under Section 156 (3) Cr.P.C. in the Court of the Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad which was numbered as Application No. 338/ACJM-5 of 2019 (Smt. Nisha vs. Vikas and Others). He argued that from the side of the applicant in the cross case Ankit and Akshay received injuries. He has drawn the attention of the Court to paragraph 13 of the affidavit and argued that Ankit received firearm injury on his leg. The said injury has been placed from Annexure-7 to the affidavit in which the doctor noted that the said gun shot injury has an exit also. Further Annexure 7 and 8 to the affidavit are the medical examination report and the further documents of treatment including the discharge summary of Akshay and learned counsel has argued that initially Akshay was taken to CHC, Ghaziabad where he was medically examined on 17.04.2019 at 6:10 a.m. from there was referred to surgeon for management of h
