Court No. - 64
Case :- CRIMINAL APPEAL No. - 5069 of 2021 Appellant :- Asif Khan Respondent :- State of U.P. and Another Counsel for Appellant :- Satyawan Shahi,Prashant Kumar Singh Counsel for Respondent :- G.A,Rajeev Kumar Singh
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri V.P. Srivastava learned Senior Counsel assisted by Sri Satyawan Shahi and Sri Prashant Kumar Singh, learned counsel for the appellant; Sri Rajeev Kumar Singh learned counsel for the opposite party No.2; Sri Ashwani Prakash Tripathi, learned AGA for the State and perused the material placed on record.
2. This criminal appeal under Section 14-A(2) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 03.9.2021, passed by learned Special Judge S.C./S.T. (Prevention of Atrocities) Act/Additional Sessions Judge, Gorakhpur, in Case Crime No. 82 of 2021, under Sections - 147, 148, 149, 307, 302, 34, 120B I.P.C., Section 7 Criminal Law Amendment Act and Section 3(2)(V) S.C./S.T. (Prevention of Atrocities) Act, Police Station - Belghat, District - Gorakhpur, whereby bail application of the appellant has been rejected.
3. At the outset, learned counsel for the appellant submits, against the FIR lodged on 01.6.2021, the appellant is in confinement since 08.6.2021 ; the appellant claims to have cooperated in the investigation. In any case he is not shown to have unduly evaded arrest; the criminal history of the appellant has been explained in paragraph-24 of the affidavit; chargesheet has already been submitted yet, trial has not commenced. Therefore, there is no hope of early conclusion of the trial; on prima facie basis, it has been submitted by learned Senior counsel that the appellant has been falsely implicated owing to other disputes and differences; the FIR was lodged by the brother-in-law of the deceased i.e. by Vishal; he did not exactly describe the time of occurrence and placed it between 22.00 hours to 2.47 hours in the intervening night of 31.5.2021 and 01.6.2021; referring to the FIR allegations, it has been submitted that the only allegation made therein is of fire arm injuries having been caused to the deceased Sanjay and his brother Ranjay; only when the post mortem was conducted the next day and upon discovery of eight incised wounds caused to Sanjay, the prosecution narration was altered through the statement of the first informant who now introduced the allegation of assault caused with knife by the present appellant and the co-accused Krishna; insofar as the injured witness Ranjay is concerned, it is submitted that his injuries were simple in nature; those have been manufactured only to give credibility to the otherwise false accusation made by the prosecution; in any case his statement was recorded with a delay of almost 15 days. Also, it has been submitted, the allegations of violation of SC/ST Act are general and made to lend colour to the story.
4. On the other hand learned A.G.A. and learned counsel for the opposite party No.2 submit that at present no premature conclusion may be drawn as to the correctness or otherwise of the statement recorded during investigation; insofar as the injured witness has clearly supported the FIR allegations, no ground is made out for grant of indulgence at this stage.
5. Having heard learned counsel for parties and having perused the record, though against column No. 3(a) of the FIR form, the time of occurrence has been placed between 22.00 hours to 2.47 hours in the intervening night of 31.5.2021 and 01.6.2021, at the same time in the body of the FIR the time of the occurrence has been described around 10.00 p.m. on 31.5.2021; close to that the injury received by the injured witness has been described as 9.30 p.m. on the injury report prepared on 01.6.2021 about 1.15 a.m..; though it is true that the FIR does not make any allegation of assault caused with knives, yet there is nothing to disbelieve prima facie the occurrence and the injuries of the injured witness Ranjay; reading his statement, at present specific role appears to have been assigned to the present appellant and the co-accused Krishna Agrahari; the delay in recording the statement of the injured may not be fatal as the reason for delay and its effect would remain to be examined at the trial; insofar as the inconsistency in the stand taken by the first informant is concerned, again no observation is required to be made at this stage as the trial is still pending. For the purpose of consideration of the present bail appeal, the Court is inclined to consider the statement of the injured witness as sufficient to deny the bail prayed for.
6. The appeal is dismissed.
7. However it is expected that the trial court shall proceed with the trial with utmost expedition and endeavour to conclude the same expeditiously, without granting any unnecessary adjournment to either the parties and preferably within a period of one year from the date of presentation of a certified copy of this order.
Order Date :- 20.12.2021 Faraz