Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8909 of 2017 Applicant :- Amit Opposite Party :- State Of U.P.
Counsel for Applicant :- Nipun Singh,Brijesh Sahai,Sunil Kumar Tiwari,Zia Naz Zaidi Counsel for Opposite Party :- G.A.,Pankaj Bharti
Hon'ble J.J. Munir,J.
This is an application for bail filed on behalf of Rajman in Case Crime No.113 of 2017, under Sections 498A, 304B, 323, 326 I.P.C. and 3/4 D.P. Act, P.S. Raunapar, District Azamgarh.
Heard Sri Brijesh Sahai, assisted by Ms. Zia Naz Zaidi, learned counsel for the applicant, Sri Pankaj Bharti, learned counsel for the complainant and Sri Kamal Singh Yadav, learned AGA appearing for the State.
The thrust submission of Sri Brijesh Sahai appearing in support of the bail application is that in the First Information Report there is a categorical case that there were three assailants borne on a single motorcycle of whom the first informant, Alka Devi knew only one Amit who is the owner/manager of another school in the village and that the categorical case is that it was Amit sitting in centre of the three riders who opened fire injuring the informant's husband, Vinod Kumar who was driving back from school alongwith the first informant and their three children, killing the informant's minor son, Banu; that Sri Sahai points out that the aforesaid version has been repeated by the first informant in her statement under Section 161 Cr.P.C. to the police, a copy of which is annexed as Annexure-2 to the affidavit where the allegation of shooting is assigned to the applicant alone; that in the statement of the injured to the police under Section 161 Cr.P.C, a copy of which is annexed as Annexure-7 to the affidavit for the first time there is a mention of two motorcycles involved in the assault, one that had three assailants riding it and each of them being named in the said statement that includes Amit and a second one that was ridden by one Ajay son of Surendra but in the statement of the injured Vinod also the exclusive role has been assigned to the applicant Amit who says that Amit was sitting in the centre of the three rider on one of the motorcycles and he alone opened fire killing their son and injuring Vinod (the informant's husband); that Sri Sahai has urged that in sharp contrast to the case in the FIR and statements to the police is the dock evidence of the first informant, Alka Devi who has deposed as PW-1 in the ongoing S.T. No.180 of 2017 where in her examination-in-chief, a certified copy of which is annexed as Annexure-SA-1 dated 27.11.2017, she has said that two bikes were involved in the assault one of them being ridden by the three as earlier mentioned including the applicant, Amit and second by Ajay as earlier said in her statements to the police but with a generically altered prosecution case by saying that the four assailants after accosting the informant and her husband, the four assailants— all of them opened fire as a result of which her husband was injured and her son, Banu was killed; that Sri Sahai submits that the first information version and the evidence of the first informant who is an eye-witness is at irreconcilable variance with the prosecution case in the FIR and statements to the police rendering the prosecution story shaky and suspect ex facie; that he further submits that the FIR and the statement under Section 161 Cr.P.C. though not substantive evidence but the value of the FIR as the earliest version of the occurrence cannot be discounted and that being at fundamental variance with dock evidence of the informant, the prosecution case falls for a grave doubt entitling the applicant to bail; that he further submits that considering the dock evidence of the first informant which is the substantive evidence to be considered in support of prosecution, the applicant alongwith three other co- accused have been assigned a general role of opening fire killing the informant's son and injuring her husband with no specific role being assigned to the applicant; that going by that evidence it cannot be said as to who is the author of the fatal injury and who is shot/hit the injured victim; that all of the aforesaid facts and features of the prosecution case put together make it shaky and suspect and certainly not a flawless case against the applicant entitling the applicant to bail; and, that the applicant is a respectable person who is in jail in connection with the present crime since 20.07.2016, a period about a year and three quarter as an undertrial with no end to the trial in sight.
Learned counsel for the complainant on the other hand has strongly opposed the prayer for bail. He has submitted that the applicant, Amit alone had a strong motive to commit the crime as he is the owner/manager of a rival school in the same village who held the school run by the first informant and her injured husband as competitors in business who were edging him out; that it is a day light incident; that the applicant is named in the FIR; that in the FIR specific and exclusive role of shooting has been assigned to the applicant by the informant; that likewise in the statement of the injured under Section 161 Cr.P.C. specific role of shooting and that to exclusively has been attributed to the applicant; that the injured in his statement under Section 161 Cr.P.C. has clearly mentioned two motorcycles being involved in the assault one ridden by Abid, Amit and Rahul and the second by Ajay; that there is a recovery of a country-made pistol and and empty at the pointing out of the applicant; that of the dock evidence on which much emphasis has been laid by the applicant to be inconsistent with the first information version, it is said that the same does not exclude the applicant from the assigned role of being one of the shooters, even if not the exclusive shooter, that led to informant's child being killed and her husband injured; that it is not the case of the applicant that the informant of her husband are criminals who could have been assaulted under a different set of circumstances; and, that in any case it being a case of direct evidence where only one witnesses of fact has been examined and the trial is at a critical juncture it is not expedient to enlarge the applicant on bail.
Learned AGA has also opposed the bail plea adopting the submissions of the learned counsel for the complainant.
Considering the overall facts and circumstances of the case, the nature of allegations, the gravity of the offence, the fact that the applicant has a motive assigned; that there is an ocular version which does not spare the role of the applicant of shooting exclusively or in the company of three others where a child was killed and the other victim sustained gunshot injuries, the fact that the victims are respectable persons who were waylayed in the assault while moving from school as a family, the fact that the trial is at a critical juncture but without expressing any opinion on merits, this Court does not find it to be a fit case for bail at this stage.
It is made clear that anything said in this order is absolutely tentative and will not influence the trial court in any manner in recording their independent conclusions on issues involved at the trial in accordance with the evidence led and the law.
The bail application, accordingly, stands rejected at this stage.
However, looking to the fact that the applicant is in jail as an undertrial for a period of a year and three quarter and in the month of January the evidence of PW-1 was being recorded in the ongoing S.T. No.180 of 2017 (State V. Amit & Ors.), under Section 302 IPC, P.S. Jansat before the Court of Additional Sessions Judge, Court No.3, Muzaffar Nagar, it is directed that the trial court shall proceed with the trial and conclude the same within six months next from the date of receipt of certified copy of this order in accordance with law.
In case witnesses do not appear on the first summons issued which will include the formal witnesses also, immediate coercive processes shall be issued to enforce their attendance and once a witness appears he/she will not be discharged till his/her evidence is over.
Let a copy of the order be certified to the court concerned for strict compliance.
Order Date :- 30.3.2018 Shahroz