Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29832 of 2019 Applicant :- Ashish Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Sudhir Mehrotra,Dhirendra Kumar Agrahari Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Dhirendra Kumar Agrahari learned counsel for the applicant, Sri Om Prakash Mishra, learned A.G.A. for the State and perused the material on record.
The instant bail application has been filed on behalf of the applicant- Ashish Kumar relating to Case Crime No. 583 of 2018, under Sections 147, 148, 149, 332, 333, 353, 341, 336, 307, 427, 436, 109 I.P.C., Section 7 of the Criminal Law Amendment Act, 1932 and Section 3/4 of Prevention of Damage of Public Property Act, 1984, Police Station Syana, District Bulandshahr, during pendency of trial.
It is argued by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. It is next argued that F.I.R. was lodged against 27 named persons and about 50-60 others alleging therein that an incident of cow slaughter was reported to the police, on which Subodh Kumar Singh, Station Officer Incharge of Police Station Syana along with other police personnels had gone to maintain law and order where the crowd had assembled on the spot. The named persons as well as 50-60 unknown men and women who were being sought to be pacified by the police started pelting stones, thereafter, at about 13:35 hours, Yogesh Raj and others leading the mob jammed the road in front of police outpost Chingravathi and started acting violently. The Sub Divisional Magistrate and Circle Officer, Syana was also present on the spot and they also tried to pacify the alleged mob which did not cool down and the named persons continued instigating the mob. It has further been alleged that with a common intention the said mob armed with illegal weapons, sharp edged weapons, lathis and dandas attacked the police personnels, snatched the licensed pistols and three mobile phones of Station House Officer, Subodh Kumar Singh after shooting him and also destroyed wireless sets and set on fire certain property belonging to the police outpost as well as a private car of the Sub Inspector Suresh Kumar and other government vehicles and articles were also destroyed. It has also been alleged that the Station Officer who received gun shot injuries was later on declared dead when he was brought to CHC Lakhawati, Aurangabad. Many other police personnels were also injured in the alleged incident but all are said to have sustained simple injuries. As many as 126 charge sheet witnesses were examined. From a perusal of the charge sheet, it would appear that in the statement of Constable Subham Saini, the names of five accused persons, i.e. present applicants Chanderpal @ Chander, Rohit Kumar Raghav, Sonu, Kuldeep Kumar and Jitendra @ Lala Gurjar came into light. It has been argued that the statement of Constable Subham Saini was recorded from which it is clear that from the very beginning the information regarding the said incident of people being aggravated due to incident of cow slaughter was received by him and on receiving the information he passed the same to the concerned police officer from where he along with other police personnels, Sub Divisional Magistrate Syana, Tehsildar Syana reached to the place of incident. Second statement of Subham Saini was also recorded which is at variance with his first statement given by him. As per second statement of Subham Saini, it is said that after receiving information regarding assembly of persons objecting the incident of cow slaughter, he went to the spot alongwith other police personnels and tried to pacify the crowd. He has stated that one person wearing the red shirt and covering his head by a cloth was having spade in his hands. The other persons were asking him to cut the trees in order to block the road. They were addressing him as Kalua and on the direction of the persons assembled there the said person started cutting the trees. When the Station House Officer (Kotwal) reached and tried to stop him from cutting the trees on which Kalua tried to hit the Inspector by spade due to which the Inspector received injures on his hand. He hit for a second time on which the concerned Station House Officer (Kotwal) asked the Home-guard Prem Prakash to give his rifle by which he hit Kalua from his back side in order to push him but again the said Kalua attacked on the concerned Station House Officer (Kotwal) due to which he sustained injuries on his head. Yogesh Raj and his associates who were present in the crowd, namely, Jitendra @ Lala Gujar, Sumit, Chotu, Ankur, Anti @ Amit, Ajay Nut, Ramesh Jogi, Hemu @ Hemraj, David, Jony, Nitin, Lokendra, Mohit Prashant Nut, Raja, Omendra, Sachin Kobra, Rahul, Jeetu Fauzi, Rajkumar, Shikar Agrawal, Ashish Chauhan, Chander @ Chandrapal, Rohit, Teeku, Guddu, Harendra, Sonu, Kuleep Kumar and Saurabh Kumar started instigating and with a common intention started pelting stones on the police personnels as well as the concerned Station House Officer (Kotwal) on which the Kotwal took the helmet from his driver Ram Asrey and blood was seen coming out from below the helmet. The Station House Officer (Kotwal) as well as the Home-guard and 2-3 police personnels tried to go behind the south wall of college and the persons from crowd present there continued pelting stones; they were having lathi, danda in their hand using abusive language and making slogans and were in their aggravated form. This incident of chaos has been narrated in detail. The statement of Subham Saini is different from the version as alleged in the F.I.R.. In the summary of investigation it has been stated that the public was pelting stones on police personnels and other officials who were present at the place of incident. During the fight between the public and the police personnels Sumit sustained fire arm injuries on which the public shouted and being annoyed Subodh Kumar Singh, Inspector In-charge, who had already sustained injuries was shot by one Prashant which was seen by the eye witnesses present there. The videography of the whole incident was there but the applicant has not been identified in the video footage. As already stated in the summary of investigation that one of the alleged assailant, namely, Sumit has also died in the said incident and his medical examination was conducted and in his medical examination the fire arm wound of entry was found and cause of death was shown to be shock and hemorrhage as a result of the said injury but the incident regarding death of Sumit has not been mentioned in the F.I.R. The post mortem of the deceased Subodh Kumar Singh was also conducted and ten ante mortem injury was found on his body, out of which injury no.1 is described as fire arm wound on the forehead. The cause of death was shown to be shock and hemorrhage due to ante mortem injury. A bullet was also recovered and sealed by the doctor conducting the post mortem examination. As has been submitted earlier that the applicant has not been named in the F.I.R. and their name surfaced for the first time in the statement of Subham Saini. After the arrest of the applicant no incriminating articles/weapons of offence or any articles connecting the applicant to the said crime have been recovered either on their pointing out or from their possession. The applicant has been wrongly targeted as a part of mob and it appears that the police started catching all the persons in an attempt to somehow or the other intimidate independent witnesses from coming forward to disclose the correct version of the incident which highlights the highhandedness of the police to substantiate their own false claims. That the persons tried to lodge the F.I.R. regarding death of Sumit, but the same has amalgamated in the present F.I.R. stating therein that it is the result of the same incident, however, no charge sheet under Sections 395 and 302 I.P.C. has come against the applicant. It is next contended that the applicant has no criminal history and there is no possibility of fleeing away from the judicial process or tampering with the witnesses and in case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and the applicant is languishing in jail since 15.12.2018. Accordingly, he request for bail.
Learned A.G.A. vehemently opposed the prayer for grant of bail to the applicant but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and the dictum of Apex Court in the case of Dataram Singh vs. State of
U.P. and another, reported in (2018) 3 SCC 22, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on their furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-
(i) The applicant shall not indulge in any criminal activity.
(ii) The applicant shall not tamper with the prosecution evidence.
(iii) The applicant shall not pressurize the prosecution witnesses.
(iv) The applicant shall regularly appear on the dates fixed by the trial court unless their personal attendance is exempted by the trial court.
In case of default of any of the conditions enumerated above, it will be open to the opposite parties to approach the Court for cancellation of bail.
Order Date :- 25.7.2019 JK Yadav