Court No. - 42
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22642 of 2019 Applicant :- Atul Kumar Pandey Opposite Party :- State Of U.P.
Counsel for Applicant :- Santosh Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Santosh Kumar Mishra, 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, Atul Kumar Pandey with a prayer to release him on bail in Case Crime No. 100 of 2019, under Sections 147, 148, 149, 302/34, 120-B I.P.C. and Section 7 Criminal Law Amendment Act, Police Station- Shivpur, District- Varanasi, during pendency of trial.
It is argued by the learned counsel for the applicant that the applicant is not named in the F.I.R. He is innocent and has been falsely implicated in the present case. It is next argued that for the incident dated 24.02.2019, the F.I.R. has been lodged by the informant-Randheer Singh @ Rana against four named and unknown person alleging therein that on 24.02.2019, he along with his brother went to Uday Pratap Swamant Shashi College, Varanasi to meet his younger son namely, Vivek (deceased), who resided in room no.10 of P.G. Hostel and after meeting, when the deceased was coming to see them off near the gate of P.G. Hostel, Anupam Namwanshi @ Kundan, Ankit Singh Sengar, Rahul Rajpoot, Pawan Singh Chintoo and other 4-5 boys were standing there. Anupam called Vivek (deceased) and as soon as he reached near them, on being instigated by Anupam, all of them started firing on him. The informant some how managed to save himself and took the deceased to Pandit Deen Dayal Hospital, where doctor declared him dead. It is next submitted that the name of applicant surfaced in the statement of the co-accused-Abhishek Mishra and Himanshu Tiwari. On the basis of the statement of the aforesaid co-accused, the role of the applicant has been assigned only to call the deceased. The applicant is languishing in jail since 12.03.2019. The applicant does not have any previous criminal history. In case, he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial by all means. Lastly, it is submitted that there is no chance of applicant fleeing away from judicial process or tampering with the witnesses.
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail and submitted that though the applicant is not named in the F.I.R., his name surfaced in the statement of eye witness-Abhishek Singh, who stated that the applicant was the person on whose call the deceased went to the place of occurrence where other accused have fired at him and thereby killed him. Post mortem on the body of the deceased was conducted on 25.02.2019 and 11 ante-mortem injuries were found:-
(i) Fire arm injury wound size 5 c.m. x 0.5 c.m. indian end totting mark 5 c.m. all over present of left ear, 160 c.m. from left head in caving deep.
(ii) Fire arm injury wound to second injury left side of face 0.5 intimate 7 c.m. from top of nose left side.
(iii) Fire arm exit wound 2 c.m. in damesh on Rt. side of eye brow 4 c.m. from left 163.
(iv) Entry wound swelling with blacking over left eye.
(v) Fire arm injury wound 0.5 c.m. indramis swelling of 2 c.m. in dimension wound axis to wound of 10 c.m., 22 c.m. from mid side 133 c.m. from left wound cavity deep.
(vi) Fire arm injury to 6th injury wound 0.5 c.m. duration of left.
(vii) Fire arm injury wound size 0.5 c.m. x 11 c.m. from left nipple 13 c.m. from middle side 2 c.m. from axillary cavity.
(viii) Fire arm injury wound 0.5 c.m. x 2 c.m.
(ix) Fire arm injury left nipple 0.5 c.m. abdominal of left arm 17 c.m.
(x) Injury wound 10th injury wound size 13 c.m. below 0.5 c.m. duration 3 c.m. below.
(xi) Fire arm injury wound 1.5 c.m. in back of Rt. chest 16 c.m.
The post-mortem report shows that due to ante-mortem injuries, deceased had died. Tattooing always appears in injuries caused by fire arm. Learned A.G.A. has also pointed out that in the statement of eye witness-Himanshu Tiwari also, the role of applicant is of calling the deceased and when the deceased reached the spot, the accused persons alongwith applicant fired upon him, therefore, the accused persons including the applicant were having common intention to cause death of Vipin. As per the F.I.R., it is very clear that all the accused persons, those who are not named also, have fired upon the deceased which resulted in his death. Thus, there is sufficient evidence available on record against the applicant and the offence committed by the applicant is of serious nature, hence the applicant is not entitled for bail at this stage.
Having considered the submissions made by the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the evidence brought on record as well as considering the complicity of the accused, but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant, thus the bail application is stands rejected.
The bail application is, accordingly, rejected. Order Date :- 7.6.2019 JK Yadav