Court No. - 78
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31220 of 2021 Applicant :- Awadhesh @ Abbu Opposite Party :- State of U.P.
Counsel for Applicant :- Sarvesh Kumar Dubey,Bhavisya Sharma Counsel for Opposite Party :- G.A.,Sunil Kumar Dwivedi,Vidya Sagar Dwivedi
Hon'ble Samit Gopal,J.
Heard Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sunil Kumar Dwivedi, learned counsel for first informant and Sri B.B. Upadhyay, learned counsel for State and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Awadhesh @ Abbu, seeking enlargement on bail during trial in connection with Case Crime No.421 of 2020, under Sections 302, 120-B I.P.C., registered at P.S. Aligang, District Etah.
On 23.09.2021, the following order was passed by this Court:-
"Heard Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sunil Kumar Dwivedi, learned counsel for the first informant and Sri U.B. Singh, learned counsel for the State.
There is recovery of a country-made pistol of 315 bore from the possession of the applicant, one bullet has been recovered from the body of the deceased and also an empty cartridge has been recovered from the place of occurrence. All the three items have been sent to forensic expert for analysis as stated by the learned counsel for the State. The said report is awaited.
Learned counsel for the State is directed to produce the same within two weeks from today.
Let the matter be listed on 18.10.2021 as fresh."
Subsequently, on 29.10.2021, the following order was again passed:-
"Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sunil Kumar Dwivedi, learned counsel for the first informant and Sri B.B. Upadhyay, learned A.G.A. are present.
On 23.09.2021 the following order was passed:-
"Heard Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sunil Kumar Dwivedi, learned counsel for the first informant and Sri U.B. Singh, learned counsel for the State.
There is recovery of a country-made pistol of 315 bore from the possession of the applicant, one bullet has been recovered from the body of the deceased and also an empty cartridge has been recovered from the place of occurrence. All the three items have been sent to forensic expert for analysis as stated by the learned counsel for the State. The said report is awaited.
Learned counsel for the State is directed to produce the same within two weeks from today.
Let the matter be listed on 18.10.2021 as fresh."
Learned A.G.A. informs the Court that in response to his letter requiring the report of the forensic expert, he has received a reply that the same is in queue for examination and as and when it is examined, the report will be send.
Learned counsel for the applicant informs the Court that charge- sheet in the matter has been filed.
This Court in Criminal Misc. Bail Application No. 14403 of 2021 vide order dated 25.10.2021 has shown its displeasure in matters sent for examinations to be done by forensic experts and has directed the higher authorities to look into the same and take care of the same. The said order is relied in the present case.
Learned A.G.A. shall inform the authorities concerned about the said order, the order dated 23.09.2021 and the order passed today in the matter for follow up.
As a last opportunity, two weeks' and no more is granted for compliance.
List this case 22.11.2021 as fresh."
The matter was then listed on 22.11.2021 and the following order was passed:-
"Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sunil Kumar Dwivedi, learned counsel for the first informant and Sri Ankit Srivastava, learned counsel for State are present.
Learned counsel for the State informs the Court that a compliance affidavit has been filed today in the office, the same is not on record.
Office is directed to trace out the same and place it on record by the next date.
It is further informed that the material sent to the ballistic expert has been identified and has been marked as urgent for being examined and the same will be done soon. Although on the last date when the matter was listed on 29.10.2021, learned counsel for the State was given last opportunity for compliance of the order but looking to the prayer as made, in the interest of justice, two weeks and no more is granted for the same.
It is made clear that the matter will be heard and decided when it is listed next.
Let the matter be listed in the week commencing 20.12.2021 as fresh."
In spite of time being granted thrice since 23.09.2021, the report of the ballistic expert insofar as it relates to the examination of the alleged recovered weapon, the bullet recovered from the dead body of the deceased and an empty cartridge recovered from the place of occurrence is concerned, is still awaited.
This Court as such proceeds to hear the matter on merits. It is a common ground between the parties that charge-sheet in the matter has been submitted against the applicant and co-accused Amaresh on 29.12.2020 even without the report of the ballistic expert.
Learned counsel for the applicant argued that the applicant has falsely implicated in the present case. It is argued that on 30.11.2020, Udayvir Singh gave an application to the police stating therein that on 30.11.2020, his brother Brajesh Kumar was going who was being followed by Alkar Singh. They were going to a party. As soon as they reached the house of Devendra, Brajesh Kumar after hearing some sound turned around and saw Alkar Singh receiving gunshot injury on his chest, the same was at about 06.15 p.m. Alkar Singh was taken to the hospital where the doctors declared him dead. The dead body is lying in the hospital. The post-mortem be got done. He further stated that when he comes to know of the entire incident, he will give an application for a first information report. Learned counsel has argued that on the said information of Udayvir Singh, the inquest on the body of deceased Alkar Singh was conducted in which Udayvir Singh was a witness to the same and his name stands at Serial No.4 to the list of witnesses therein. The post mortem examination was then conducted on 01.12.2020 at about 11.50 a.m. Subsequently, the first information report of the present case was lodged on 01.12.2020 at 19.11 hours by Udayvir Singh naming the applicant and Amaresh as the accused introducing Kumari Goldi aged about 11 years who is the daughter of the deceased Ahilkar Singh as the person accompanying him at the time of incident. It is argued that in the first information report there is an allegation that the applicant fired from a 315 bore country made pistol on Alkar Singh due to which he received injury and died. Insofar as Brajesh Kumar is concerned, it was stated that he although was also going to the party, but after seeing the incident, he became unconscious. It is argued that subsequently, Brajesh Singh was interrogated as an eye-witness and his statement under Section 161 Cr.P.C. was recorded wherein, he states of the incident as narrated in the first information report, but even states that he re-gained his consciousness on 01.12.2020 and then he discloses the incident of this brother Udayvir. Kumari Goldi was also interrogated as an eye-witness to the incident. It is argued that the police has subsequently after the arrest of the applicant shown the recovery of a 315 bore country made pistol from the possession of the applicant. The same is a false and a planted recovery. Learned counsel has argued that the implication of the applicant in the present case is an afterthought. In the application dated 30.11.2020 given by Udayvir Singh who is the first informant also of the case, the applicant is not named therein and there is no reference of any person as an accused being involved. Subsequently, after a day, he lodges the first information report and names the applicant and co-accused Amaresh and assigns the role to the applicant of firing upon the deceased. It is argued that the same is an afterthought and false implication of the applicant cannot be ruled out. It is further argued that the applicant has no criminal history as stated in Para-14 and he is in jail since 08.12.2020.
Per contra, learned counsel for first informant and the learned counsel for State opposed the prayer for bail and argued that the applicant is named in the first information report and has been assigned the specific role of firing upon the deceased due to which he received injury and died. It is argued that the medical evidence corroborates with the prosecution case. It is further argued that Brajesh Singh and Kumari Goldi are the eye-witnesses of the incident. There is no reason for false implication of the applicant. It is argued that as such the present bail application be rejected.
After having heard learned counsel for the parties and perusing the record, it is evident that Udayvir, the first informant in the present case has in his application dated 30.11.2020 stated of Brajesh Kumar being an eye-witness of incident. Even in the first information report, he states of Brajesh Kumar to be an eye-witness. Brajesh Kumar while being interrogated discloses the incident and the role to the applicant. The applicant is assigned the specific role of shooting upon the deceased.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
Accordingly, the bail application is rejected, at this stage.
Order Date :- 22.12.2021 SK Goswami (Samit Gopal,J.)