Judgement Reserved
Court No. -
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4039 of 2018 Applicant :- Amarpal Sharma Opposite Party :- State Of U.P. Counsel for Applicant :- Dileep Kumar Counsel for Opposite Party :- G.A.,Vinay Saran,M.D.Misra,Pankaj Kumar,Pawan Bhrdwaj
Hon'ble Umesh Chandra Srivastava,J.
Applicant Amar Pal Sharma, son of Shyam Lal Sharma, resident of 568, Sharfuddin Jawli, Police Station-Loni, District-Ghaziabad, Presently residing at Nyay Khand Pratham, P.S. Indirapuram, District -Ghaziabad has made this application seeking bail in Case Crime No. 461 of 2017, under section 120-B, 307, 302, 34 I.P.C. P.S. Khoda, District -Ghaziabad.
Briefly stated, Gajendra Bhati, the deceased was done to death by two unknown persons on 02.09.2017 at 13:15 hours at a public place by opening fire over him, while he was going on a motorcycle as pillion rider along with Balbir Singh Chauhan. Balbir Singh Chauhan also received fire arm injuries in the said incident. It is stated that deceased was done to death by hired shooters at the behest and instruction of applicant, an Ex-MLA.
Heard Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Rakesh Kumar Singh and Shri Dileep Kumar, learned counsel for applicant, Shri Vinay Saran and Pankaj Kumar Singh, learned counsel for first informant along with learned AGA for State and perused the material on record.
Learned Senior Advocate appearing for applicant submits that applicant, who is an Ex-MLA, has been falsely implicated on account of political rivalry by raising suspicion, no role of shooting has been assigned to him. He further submits that prosecution has build up a cock and bull story that applicant being feared with rising graph of applicant hatched a criminal conspiracy and got him done to death with the help of hired shooters.
The learned Senior Advocate further submits that first informant, who happens to be real brother of deceased and claims to be present on spot at the time of offence, was in fact not present there and seen the incident, had he been present and seen the incident, he would have lodged the F.I.R. then and there, he would not wait about 21 hours to lodge the report, after proceedings and post-mortem examination.
The learned Senior Advocate further submits that eye witness account of first informant and other witnesses being of close relatives and own men is not reliable. He further submits that alleged confessional statements of applicant and co-accused being given while in police custody is not admissible in evidence. The eye witness account of injured witness being recorded after many days of the occurrence is also not reliable.
The learned Senior Advocate for applicant further submits that nothing incriminating has been recovered either from possession or on the pointing out of the applicant. He also submits that criminal history of applicant has been explained in affidavits filed in support of bail application.
The learned AGA and learned counsel appearing for first informant have vehemently opposed the prayer and submitted that applicant is the author of the incident as incident took place at his behest and instruction. They further submitted that evidences collected during course of investigation clearly suggest that those by whom deceased was done to death were hired shooters who killed deceased at behest and instruction of applicant. The prosecution story is supported with eye witness account also, including injured witness.
The learned AGA and learned counsel appearing for first informant have further submitted that in conspiracy prosecution, confessional statements of applicant and of co-accused are admissible in evidence.
They have also submitted that applicant has a criminal history of many cases and, if released on bail, the possibility of him tampering with the witnesses cannot be ruled out.
In support, learned counsel has placed reliance on the Judgement of Hon'ble Apex Court in the case of Firozuddin Basheeruddin vs. State of Kerala, reported in LAWS(SC) 2001 8 136. The Apex Court in this case has held that “declaration made by one conspirator is admissible against each co-conspirator. Hearsay evidence is admissible in conspiracy prosecutions. Contrary to the usual rule, in conspiracy prosecutions, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co- conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Conspirators are liable on an agency theory for statements of co-conspirators, just as they are for the overt acts and crimes committed by their confrerers.
The Hon'ble Apex court in the case of State of Uttar Pradesh vs. Madhumani Tripathi reported in LAWS (SC) 2005 9 72 has while dealing with bail cancellation application held that in an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. The post bail conduct are not to be considered for cancellation of bail.
In Narender Kumar Sharma vs. Manoj Chowdhary reported in LAWS (SC) 2005 9 18, the Apex Court has held that when there is history-sheet of crime along with a murder, though single injury sustained by deceased, cannot be ground for grant of bail.
In Central Bureau of Investigation vs. V. Vijay Sai Reddy, reported in (2013) 7 Supreme Court Cases 452, cancelled the bail granted to accused, who happens to be son of an ex-chief minister, as lower court had granted bail to him on irrelevant consideration. The Apex Court held that in this case economic offence of huge magnitude, public money and property was involved. Therefore, it was not desirable for lower court to grant bail to accused.
In Neeru Yadav vs. State of U.P. And another, reported in 2015 (1) G.L.H. 118, the Apex Court has held that past conduct of the accused ought to be taken into account while granting bail. It has further held that when a stand was taken that accused was a history- sheeter, it was imperative on the part of High Court to scrutinize every aspect and not capriciously record.
After having heard the respective submissions of learned counsel of both parties, the factual position that has been so emerging is that despite deceased being said to have been done to death in presence of his close relatives (wife and brother) and his own men, the F.I.R. of the incident has been lodged with delay of about 21 hours, after inquest proceeding and post-mortem examination of deceased. No plausible explanation has been offered why F.I.R. of the incident was not lodged then and there. In F.I.R., which has been lodged by the real brother of deceased, applicant has been named by raising suspicion. Gulab Singh, who disclosed the names of shooters, did not disclose their names to first informant despite allegedly being present with him at the time of occurrence. The Investigating Officer recorded statement of injured and wife of deceased after many days of the alleged occurrence. Applicant has a history sheet of many cases, but he is not a previous convict.
Considering the over all facts and circumstances of the case, nature and gravity of the offence allegedly committed, nature of accusation against applicant and evidence in support of it and also that despite a history sheet applicant is not a previous convict, I find that a case for bail is made out.
Let applicant Amarpal Sharma be released on bail in Case Crime No. 461 of 2017, under Sections 120-B, 307, 302, 34 I.P.C., P.S. Khoda, District Ghaziabad, on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
Order Date :- 24.04.2018 Bhanu