Hon'ble Samit Gopal,J.
Order on Crl. Misc. Bail Application No. Nil of 2020 Heard Sri Satyendra Kumar Singh, learned counsel for the appellants-applicants, Sri I.K. Chaturvedi, learned Senior Advocate assisted by Sri Ram Milan Dwivedi, learned counsel for the first informant and Sri J.K. Upadhyay, learned AGA for the State and perused the records.
This bail application under Section 389(1) of Code of Criminal Procedure has been filed by the appellants-applicants Aniruddha @ Kalloo and Anuj @ Bhola seeking enlargement on bail in Sessions Trial No. 613 of 2015 (State Vs. Bhola and others), under Sections 302/34 IPC, registered at P.S. Inchauli, District Meerut.
The prosecution case as per the First Information Report lodged by Rawan Pal Singh (PW-1) is that his son Anuj Siwach had a fight with his neighbour Bhola and Aniruddha @ Kalloo after which respectable persons collected and the matter was settled but the accused persons had enmity due to the same. On 20.02.2015 at 06:00 pm, the first informant, his two sons Vishal Siwach and Anuj Siwach were sitting at the door on their house, on which, Bhola and Aniruddha @ Kalloo along with two unknown persons came there and fired upon Anuj Siwach. The first informant and his son Vishal Siwach tried to catch the accused persons but they fired on them and ran away. They did not receive any firearm injuries. The informant and his son Vishal Siwach took his injured son to Jyoti Nursing Home where they refused to entertain him and then he was taken to Anand Hospital where the doctors declared him dead. The First Information Report was registered on the same day i.e. 20.02.2015 at 10:00 pm at Police Station Inchauli, District Meerut. The distance between place of occurrence and the Police Station was 7 kilometers. Anuj Siwach, the son of the first informant died.
The postmortem examination was conducted by Dr. Rajeev Kumar Gupta (PW-4) who found five firearm wounds and two lacerated wounds on the body of the deceased. Amongst the five firearm wounds, four wounds were wounds of entry and one was a wound of exit.
During investigation, the names of two persons being Harish @ Nepali and Aditya were disclosed by Naresh Pal (PW-3) and they were also made as an accused in the present incident. Harish @ Nepali and Aditya have been acquitted vide the same judgment and order which is under challenge in the present appeal.
Learned counsel for the applicants has argued that as per the prosecution Rawan Pal Singh, the first informant (PW-1) and Vishal Kumar (PW-2) are the eye witnesses of the incident. It is argued that Naresh Pal (PW-3) is not an eye witness of the incident as he has stated that he saw the accused persons running away and had named the four accused persons but he had not seen the actual murder and as such he is not an eye witness to the incident. Learned counsel has argued that the presence of PW-1 and PW-2 at the place of occurrence is false. It is argued that PW-1 has stated that when he was taking the deceased to the hospital, his clothes got blood stained but no such clothes were taken by the Investigating Officer during investigation. It is argued that as such the presence of the first informant is belied. It is further argued that the deceased as was brought to the Anand Hospital has been noted in the death memo to be brought by Monu who has stated to be his chacha. It is argued that even on this count, the presence of PW-1 and PW-2 at the place of occurrence is doubtful as the prosecution case is specific on the same point that the first informant and his son Vishal Siwach had taken the deceased to the hospital.
Learned counsel has further argued that the prosecution story does not corroborate with the medical evidence as the deceased has received two lacerated wounds and PW-4 being the doctor who conducted the postmortem examination has stated that the injury nos. 2 and 3 were caused by kudali but the prosecution case is specific that the deceased was assaulted by firearms and there is no mention of use of kudali in the incident. It is further argued that the distance of firing as shown from the site plan also does not corroborate with the medical evidence as the same does not correspond to it. Learned counsel has further argued that the prosecution case is specific on the point that from the possession of Bhola a 32 bore country made pistal, from Harish @ Nepali a 315 bore country made pistol, from Aditya a 315 bore country made pistol and from Aniruddha @ Kalloo 315 bore country made pistol were recovered which were sent along with the empties recovered from the place of occurrence and as per the report of the ballistic expert, the same have been opined to have not been fired from the said weapons. It is argued that even the corroboration of the use of the said weapons is missing and as such the alleged recovery also does not in any manner become incriminating. It is argued that as such the applicants-appellants may be granted bail during the pendency of their appeal.
Per contra, learned counsel for the first informant and the learned AGA opposed the prayer for bail. It is argued that the defence has not challenged the time, date of occurrence, manner of assault even the place of occurrence. It is argued that the deceased received firearm injuries, for which, the prosecution case is consistent. It is argued that in so far as the injury nos. 2 and 3 are concerned, they have been received on the bony part of the body and the possibility of their being received as a result of fall cannot be ruled out. It is further argued that the death memo of Anand Hospital as is being relied by the learned counsel for the appellants while arguing that the deceased was not taken by the first informant and his son to the hospital is a document which has not been exhibited in the trial. It is argued that the accused appellants had a motive to commit the aforesaid offence as has been mentioned in the First Information Report itself which is a fight between the deceased and the accused persons, for which, even persons of the village were called to mediate. It is argued that the First Information Report is a prompt report as the distance between place of occurrence and Police Station is 7 kilometers, the same has been lodged by the father of the deceased who has given a proper explanation regarding his movement along with his injured son and then had lodged the First Information Report. It is argued that the presence of PW-1 and PW-2 at the place of occurrence is very natural as the same is the door of the house of PW-1 itself. It is argued that the accused persons had remained in jail during the pendency of trial, looking to the evidence, the nature of case and the gravity of offence, the prayer for bail of the appellants-applicants be rejected.
Looking to the facts and circumstances of the case and after going through the records, we do not find it a fit case for bail.
Accordingly, the bail application is rejected.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the petitioner (s) along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 23.2.2021 M. ARIF