(Judgement reserved on 31.8.2018 (Judgement delivered on 13.9.2018) Court No. - 43 Criminal Misc. Third Bail Application No.102700 of 2014 IN Case :- CRIMINAL APPEAL No. - 4638 of 2011 Appellant :- Ajay Thakur Respondent :- State Of U.P.
Counsel for Appellant :- Rajiv Gupta,Gyanendra Kumar Singh,Jag Narayan,Lav Srivastava,P.K. Chauhan Counsel for Respondent :- Govt. Advocate,A.V.Singh Rana Hon'ble Pankaj Naqvi,J. Hon'ble Krishna Pratap Singh,J.
Heard Shri V.P.Srivastava, the learned Senior Counsel assisted by Shri Gyanendra Kumar Singh, for the appellant and Shri A.N.Mulla, the learned A.G.A, in connection with 3rd bail of appellant Ajay Thakur.
The case of the prosecution in brief is that injured/victim (P.W-1) while returning to his home at around 9.30 P.M on 25.9.2005, came across appellant and co-accused Bablu Gupta, who demanded Rs.5,000/- from him, to which he expressed his inability, over which both the accused started hurling abuses, at him using caste abusive words followed by use of country made pistols fired at him as a result of which he sustained injuries.
The trial court after analysing the evidence convicted the appellant and co-accused Bablu Gupta under Section 307 I.P.C to 10 years R.I, with fine of Rs.2000/- each and a default sentence of one year each; under section3(2)(5) SC/ST Act with life sentence, alongwith fine of Rs.5,000/- each and a default sentence of two and a half year each. All sentences were to run concurrently.
The first bail of the appellant alongwith that of co-accused was rejected on merits on 25.7.2012. The second bail of appellant was rejected on 25.7.2013 primarily on the ground of injuries sustained by the victim and considering the severity of the offence the court had also issued a notice for enhancement of sentence, the court was not inclined to enlarge the appellant on mere detention of 3 years.
The Learned Senior Counsel for the appellant now raised following submissions;
The appellant is in jail since 20.7.20 1, paper books are yet not ready, hearing is likely to take time, appellant be enlarged on bail. He further submitted on the strength of the judgements of the Apex Court in Gorige Pentalah vs. State of A.P 2009(1) SCC 446 and Masumsha Hassansasha Musalman Vs. State of Maharashtra (2000)3 SCC 557 that merely using word 'chamar' at 9.30 P.M, at a place which was not within public view, would not attract the offence under SC/ST Act.
Learned A.G.A opposed the submission primarily on the ground that considering the severity/gravity of the offence, no good ground is made out to enlarge the appellant on bail on mere detention of more than 7 years, coupled with the fact that reliance on the authorities placed by Learned Senior Counsel is misconceived which would have no application in the instant case and the appellant is already under notice of enhancement of sentence.
P.W-1/victim, in his evidence stated that appellant alongwith co- accused allegedly used caste abusive words including the word “chamar” when the victim refused to give them money, upon which appellant and co-accused fired from their respective country made pistol at the victim (P.W-1) who sustained the following injuries which were medically examined on 25.9.2005 at about 1.30 P.M in the hospital:-
1& flj ds ck;h vksj ck;s dku ds fcYdqy Åij 2-5 X 2 lseh- dk xksyh ds izos'k dk ?kko ekStwn FkkA ?kko ds fdukjs QVs gq, ,oa vUnj dh rjQ >qds gq;s FksA ?kko ds pkjks vksj dkykiu ,oa VsVwbax ekStwn FkhA ?kko ls rktk [kwu fjl jgk FkkA ck;s dku dh Åijh fgLlk Hkh QVk gqvk FkkA xksyh ds fudkl dk dksbZ ?kko ekStwn ugh FkkA 2& ck;s xky ds e/; esa 3 X 1-5 lseh- xksyh ds izos'k dk ?kko ekStwn FkkA ?kko ds fdukjs QVs gq, ,oa vUnj dh rjQ >qds gq;s FksA dkykiu ,oa VsVwbax ekStwn FkhA ?kko ls rktk [kwu fjl jgk FkkA xksyh ds fudkl dk dksbZ ?kko ekStwn ugh FkkA 3& flj ds ihNs ck;h vksj 2 X 1-5 lseh- X diky xqgk rd xgjk xksyh ds izos'k dk ?kko ekStwn FkkA ?kko ds fdukjs QVs gq, ,oa vUnj dh vksj >qds gq, FksA ?kko ds pkjks vksj dkykiu ,oa VsVwbax ugh ekStwn Fkh xksyh ds fudkl dk dksbZ ?kko ekStwn ugh FkkA The judgement in Gorige Pentalah relates to an offence under Section 3(1)(X) of the SC/ST Act which relates to intentional insults or intimidation with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view, which is not the offence involved in the present case as the appellant has been convicted under Section 3(2)(V) of the Act. Secondly the judgement in Masumsha too would have no application as in the said case in the absence of any evidence that the overt act was committed for the dominant reason that the victim was a member of scheduled caste/scheduled tribe, whereas in the present case prima facie there is evidence to indicate that the overt act was committed for the reason that the victim belonged to a “chamar”
community by using caste abusive words when P.W-1 declined to give any money to the appellant and other co-accused.
Considering the facts and circumstances of the case and the submissions made by learned counsel for the parties, the court does not find any good ground to enlarge the applicant on bail.
The 3rd bail is rejected.
Office is directed to prepare the paper books and hand over copy of the same to the learned counsel for the appellant on payment of usual charges, free of cost to the learned A.G.A, and thereafter list the appeal for hearing in the week commencing 12.11.2018.
Order Date :- 13.9.2018 RS