Court No. - 44
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44758 of 2018 Applicant :- Prabhakar Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- Rajeev Sawhney Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
By means of the instant bail application the applicant is seeking bail in Case Crime No. 250 of 2017, under section 302 IPC, P.S. Chhajlait, District Moradabad.
Perusal of the record reveals that initially FIR was lodged for the offence under sections 307 and 506 IPC on 13.10.2017 at about 17.40 hours against the applicant- Prabhakar Singh, Kamlesh and two other unknown persons. The text of the FIR reveals that the incident occurred on 13.10.2017 at about 10.30 hours by the informant Amit Kumar alleging therein that while Atul, younger brother of the informant was moving from Fatehpur village towards Sherua crossing on a car, the present applicant Prabhakar signalled the car to halt and as soon the car halted and the victim deboarded the car, on the exhortation of co-accused Kamlesh, the present applicant Prabhakar shot at Atul by his gun with an intention to kill him. On hearing the fire shot, several police personnels rushed at the spot, meanwhile the applicant along with co-accused Kamlesh, extending threats, took to their heels in the agricultural field and rest of the two unknown miscreants fled on their motorcycle. The injured Atul took his last breath on 15.10.2017 during his medical treatment in Fortis Hospital, NOIDA whereupon the Investigating Officer of the case, prepared Parcha on the same day and converted the FIR under section 302 IPC, deleting the sections 307 and 506 IPC. The post mortem examination report of the deceased reveals that the deceased sustained as many seven stitched wounds on his chest, which is vital part of the body of the deceased. The doctor, conducting the post examination report opined that death might have caused due to the ante mortem injuries.
Learned counsel for the applicant drew attention of this Court towards the statement of the victim (now deceased) recorded under section 161 Cr.P.C., copy of which has been annexed as annexed no. 5 to the affidavit of the bail application, wherein the victim on query stated that when he went to the agricultural field on the fateful day, he saw Prabhakar (herein applicant) along with his wife were getting ploughed the disputed field and on his protest, Prabhakar shot at him from his rifle. Learned counsel for the applicant submitted that the version of the FIR and the aforesaid statement of the deceased are totally different with each other. The incident occurred due to a sudden tiff between the victim and the applicant. The victim died after three days thereafter, hence, the case would not travel beyond the ambit of section 304 IPC and the charge sheet has wrongly been submitted under section 302 IPC by the Investigating Officer concerned.
The aforesaid situation compels the Court to arrive at a conclusion that the applicant shot dead the victim Atul by his gun. The corroborative statement of the witness Girishpal, who was driver of the tractor with whom the applicant was cultivating the agricultural field, also affirmed the fact that a tiff happened between the victim and this witness affirmed that the applicant, at the relevant point of time, was carrying single barrel gun. Second witness Jagveer in his statement affirmed that at 10.30 A.M. he saw the applicant standing on the disputed field with his SBBL gun along with a woman and the injured Atul (now deceased) was lying on the field. Therefore, this Court is not convinced with the submissions of the learned counsel for the applicant. There is specific prosecution story corroborated by the post mortem report as well as the victim's own statement recorded under section 161 Cr.P.C., attributing the role of causing him the fatal gun shot injuries, which after the death of injured can be treated to be his dying declaration in the eyes of law.
Keeping in view the severity of the offence, evidence, complicity of the accused, without expressing any opinion on merits, this Court declines to grant any relief to the accused applicant.
The application for bail is, accordingly, rejected.
However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same within a year from the date of production of a certified copy of this Court, in accordance with law, without granting any unnecessary adjournment to either of the parties, provide the applicant fully cooperates in conclusion of the trial.
Office is directed to transmit a certified copy of this order to the court concerned within a fortnight.
Order Date :- 27.11.2018 shailesh