Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40230 of 2019 Applicant :- Diwakar Bhartiya Opposite Party :- State of U.P.
Counsel for Applicant :- Dhirendra Kumar Dwivedi,Dhyan Shanker Pandey,Krishna Kant Dwivedi Counsel for Opposite Party :- G.A.,Chandra Bhushan Mishra,Prem Shanker Mishra
Hon'ble Samit Gopal,J.
Heard Sri Krishna Kant Dwivedi, learned counsel for the applicant, Sri Chandra Bhushan Mishra, learned counsel for first informant and Sri V.B. Upadhyay, learned A.G.A. for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Diwakar Bhartiya seeking enlargement on bail during trial in connection with Case Crime No. 760 of 2018, under Sections 34, 302, 504 IPC, registered at P.S. Ghoorpur, District Allahabad.
Learned counsel for the applicant argued that applicant has been falsely implicated in the present case. It is further argued that on the own showing in the first information report the first informant reached the place of occurrence on hearing gun shot, he is not an eye witness. It is argued that recital in the first information report by the first informant that co- accused Diwakar Bhartiya and Chandra Shekhar Bhartiya caught hold to his brother Karamchand Patel, Diwakar Bhartiya the present applicant shot him with country made pistol, the version given by him is incorrect. He has in the first information report himself stated that he reached the place of occurrence on hearing gun shot, while placing the statement of first informant under section 161 Cr.P.C., which has been annexed as annexure 4. The statement of another eye witness Vimal Chandra Patel has been annexed as annexure 5 and witness Rakesh Kumar who is also claiming to be an eye witness which has been annexed as annexure 6 have been placed and it is argued that all the said three witnesses have stated that they reached the place of occurrence and hearing gun shot. As such they are not eye witnesses of the said occurrence. It is argued that as per postmortem report applicant has received only single gun shot injury. It is further argued that applicant has been implicated due to enmity as his brother Chandra Shekhar Patel had lodged first information report as Case Crime No. 689 of 2018 under sections 147/323/325/506 IPC and 3 (1) (Da) (Dha) SC/ST Act, Police Station Ghoorpur, District Allahabad against deceased and first informant, the copy of the said first information report has been annexed as annexure no.
8. It is argued that due to said enmity the applicant has been falsely implicated. In so far as the recovery of the country made pistol on the pointing out of the applicant is concerned, it is argued that same is being denied and is a false planted recovery shown. He lastly argued that applicant is having no criminal history as stated in para 15 and he is in jail since 26.11.2018. It is further argued that co-accused Tiger @ Phoolchandra has been granted bail by the co-ordinate Bench of this court vide order dated 8.3.2019 in Criminal Misc. Bail Application No. 10006 of 2019 (Tiger @ Phoolchandra Vs. State of U.P.) and co-accused Ram Bahadur has also been granted bail by the co- ordinate Bench of this court vide order dated 17.05.2019 in Criminal Misc. Bail Application No. 19545 of 2019 (Ram Bahadur Vs. State of U.P.) as well as co-accused Chandra Shekhar Bhartiya has also been granted bail by the co-ordinate Bench of this court vide order dated 17.05.2019 in Criminal Misc. Bail Application No. 19547 of 2019 (Chandra Shekhar Bhartiya Vs. State of U.P.
Per contra, learned counsel for the first informant and learned AGA opposed the prayer for bail and argued that role assigned to the applicant is of firing upon Karamchand Patel the deceased and he died because of fire arm injury, which corroborates in the prosecution version. It is further argued that applicant has got recovered country made pistol on his pointing out which was said to be used in the present incident. It is further argued that the trial in the present case has started and the examination in chief of PW-1 who is the first informant has been recorded but the accused persons are delaying the trial. It is argued that the release of the applicant is an adverse effect on trial, as such the bail of the applicant be rejected.
Having heard learned counsel for the parties and have gone through the records, I do not find it is a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail at this stage.
The bail application is, accordingly, rejected.
However, at this stage, learned counsel states that a direction may be given to the trial court for expeditious disposal of trial. Accordingly, looking to the period of incarceration, the trial court is directed to expedite the trial and make an endeavour to conclude the same, strictly in accordance with Section 309 Cr.P.C., preferably within a period of six months, without granting unnecessary adjournment to either of the parties, subject to any legal impediment.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
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.
(Samit Gopal,J.) Order Date :- 6.1.2021 Vikram