Hon'ble Ajit Kumar,J.
Order on Bail Application (Delivered by Hon'ble Ajit Kumar, J.)
1. This is an application seeking bail in criminal appeal no. 2071 of 2017 arising out of the judgment and order dated 10.4.2017 passed by Sessions Judge, Basti convicting the accused applicant under Section 302 IPC and sentencing him for rigorous life imprisonment alongwith fine of Rs. 20,000/-.
2. The State has filed its objection to the bail application in the form of short counter affidavit annexing a document indicating that after the case in question, one more case under Section 6 of U.P. Special Power Act, 1932 was registered against the applicant in case crime no. 1776 of 2011. Learned counsel for the applicant inspite of service of counter affidavit on 10.5.2017 has chosen not to file any rejoinder affidavit and has proceeded to argue the matter.
3. We have heard Sri Gopal Swarup Chaturvedi, learned Senior Advocate assisted by Dr. Akhilesh Kumar Sharma, Sri Daya Shankar Mishra, learned Advocate for the applicant and Sri K.P. Singh, and S.K.Pandey learned Advocates for the complainant respondent and Si Ajit Rai, learned Additional Government Advocate for the State and have perused the record.
4. As per the prosecution case, accused Ram Karan Arya, a sitting MLA committed the murder of the victim Shambhu Saran Pal by firing a shot upon him from a double barrel gun from a close distance on 23rd November, 1994 at around 12:00 PM when his Jeep was hit from the rear by another vehicle belonging to Shambhu Sharan Pal, who was proceeding to attend political meeting of Jagdambika Pal, a political leader of Congress Party. As per the FIR version, the applicant Ram Karan Arya came from behind and stopped the deceased's vehicle and thereafter the armed men of accused Ram Karan Arya surrounded his jeep. The accused Ram Karan Arya started shouting at him as to how could he hit his Jeep from behind. This lead to exchange of arguments and following this, accused Ram Karan Yadav took his double barrel gun from his shadow Ram Ujagir and fired upon the victim which hit on his neck. Resultantly, he fell down. Immediately he was rushed to the hospital where he was declared dead.
5. The police submitted a charge-sheet and the case was committed to sessions on 29.5.1995 and was registered as sessions trial no. 91 of 1995 on 31.5.1995 in respect of applicant, Ram Karan Arya, Ram Ujagir, Om Prakash and Usman @ Yusuf. Since the accused, Amarchand, Santram, Rampyare, Constable A.P. 88 Rupendra Kujur, and Banarsi Prasad were absconding so the charge sheet against them was submitted on 08.02.1996 after the conclusion of investigation, the case was committed to the sessions on 11.02.2009. and was registered as sessions trial no. 38 of 2009 on 27.2.2009.
6. In respect of trial number 91 of 1995, Jaibaksh Pal, informant was examined as PW-1, Parmeshwar Pal, Satywan, Om Prakash, Dr. S.S. Dwivedi and head-constable Kapil Dev, Vishwanath Tiwari, S.I. Srikant Singh, Inspector BrijMohan and Inspector Pawan Kumar have been examined as PW. 2,3,4,5,6,7,8,9 and 10 respectively. P.W.-8 Srikant Singh prepared inquest report (Exchibit-6) and also collected blood stains, soil and concrete mixed Charkol from the place of incident and prepared Fard (Exhibit-13) and site plan (Exhibit-14), whereas PW-1- Inspector, Pawan Kumar recovered the licensed double barrel gun of the applicant on the pointing out of an informer. He prepared the site plan of recovery and recovery memo (exhibit 19 and 20) and sent the double barrel gun for the ballistic examination.
7. Autopsy was conducted by Dr. G.C.Singh and Dr. S.S.Dwivedi, Medical Officers of District Hospital, Basti. According to post mortem report inter alia fire arm wound of entry 6 x 5 cm. Chest cavity deep on the right side of the neck was found. Blackening and Tattooing was also found around the injury on the neck. The cause of death was given by Medical Officer as shock and excessive bleeding due to ante-mortem injuries caused by fire arm. Post mortem report, (Exchibit-2) has also been proved by the Medical Officer before the court. Ballistic Expert report dated 23.2.1995 (Exhibit-22) was also produced by the prosecution before the Court.
8. The trial court after examining all the witnesses in sessions trial no. 91 of 1995, also examined all the witnesses afresh in sessions trial no. 38 of 2009, who were common in both trials. We find a reference in this regard in para 50 of the impugned judgment. In so far as sessions trial no. 91 of 1995 is concerned, the Trial Court has observed that all the prosecution witnesses have supported the prosecution case and are consistent in their testimonies with respect to the date, time and place of incident. The postmortem report and the ballistic expert opinion are supportive of the prosecution case. The court below after appreciating the entire evidence including material evidence has held the accused applicant guilty of the offence under Section 302 IPC but has acquitted him in other sections. However, the trial court has acquitted all the other accused persons in sessions trial nos. 91 of 1995 and 38 of 2009 respectively.
9. While arguing the bail application of convict learned counsel for the applicant have raised the following arguments:
a. Once the trial court has examined the witnesses separately in the two Sessions Trials (supra) and it conducted two trials separately, there was no occasion for the trial court to have decided both the trials by one common judgment, as such, the trial court has committed a material illegality and manifest error of law resulting in flagrant miscarriage of justice;
b. Though the other accused persons having been acquitted under Section 147, 148,149,302,504,506 IPC in the same case crime numbers however the applicant has been convicted. There was no occasion to hold him guilty and thus he was equally entitled for benefit of doubt;
c. The medical evidence does not co-relate with the ocular version as admittedly convict was shorter in height than victim and had fired shot from angle lower than the target and so injury should have been in upward direction and not downward as has come in the medical evidence;
d. Though, large number of people had gathered when the heated arguments were exchanged between the two sides followed by the alleged incident, still no independent witness was produced;
e. The omission to refer to the first information report and also not annexing the copy thereof while sending the dead body for the post mortem indicates that there was no first information report in existence and so it was ante-timed. It is also corroborated from the fact that said report which is required to be sent to CJM under Section 157 of the Cr.P.C. was marked "seen" by the CJM only on 29.11.1994 which clearly shows that there was an inordinate delay in sending the FIR to the higher authorities and as such, it creates doubt about the lodging of the FIR at 1.10 PM on 23.11.1994;
f. even as per the evidence available on record it could at the most be a case of culpable homicide not amounting to murder falling under exception IV of Section 300 IPC and therefore it was a case for conviction and sentence under Section 304 IPC and not 302 IPC;
g. The applicant is entitled for the benefit of doubt as no question was put to him under Section 313 of Cr.P.C with regard to recovery of barrel gun along-with live and empty cartridges; and h. The convict has been through out on bail during trial and has never abused bail nor has been involved in any criminal case except the present one. So looking to his over all conduct, the applicant is entitled to bail.
10. Per contra the learned AGA Sri Ajit Ray on behalf of the State and Sri K.P. Singh, Advocate opposing bail application argued:
a. The trial court has recorded and dealt with the evidence of two trials separately and has appreciated the same inasmuch as case crime number being the same and the nature of evidence being the same, no prejudice is caused to the applicant if both the trials are decided by a common judgment.
b. It is a case of broad-day light murder in gaze of public supported by direct evidence. Prosecution witnesses have remained entact in their stand through out.
c. Omission to send a copy of FIR to the Medical Officer conducting postmortem examination in case of direct evidence, can not be said to be fatal to prosecution case particularly in the face of the fact that inquest report did contain case crime number;
d. The appellant, who is a former MLA and Minister in the Government made every effort to protract the already delayed Trial of the case for about 24 years. In case the appellant is granted bail, public confidence in the judicial system would stands eroded and shattered.
e. A mere absence of criminal antecedent is not enough to grant bail considering gravity of offence and the fact that a public leader/politician has to set an example of perseverance to the society while facing odds in public life coupled with humility instead of getting wild and run into rage and commit cold blooded murder in public gaze merely on collision of Jeep from behind causing no harm to any passenger. If such a convict, is granted bail it would send down a wrong message to society at large and tend to shake public confidence in the system if in such case bail is granted.
11. Leading the argument in the case Shri Daya Shankar Mishra, learned advocate has stressed mainly on points b, c, d, e, f, g and h, the learned Senior Advocate Shri Gopal Swaroop Chaturvedi inter alia stressed on point nos. a and f.
12. We are taking up the point (a) and (f) first for consideration.
13. The argument is that the judgment gets vitiated in law if the trial court decides two trials arising out of the same crime number by a common judgment. We, however are unable to subscribe to this argument not for one but for many reasons. We shall state the reasons briefly.
14. Firstly, the two trials arise out of the same case crime No. 857 of 1994 relating to one and the same incident. We find that while the charge sheet was filed against applicant, Ram Ujagir, Om Prakash and Usman in Sessions Trial No. 91 of 1995, the investigation against the other accused persons, namely, Amar Chand, Santram, Ram Pyare, C.P. 88 Rupendra Kujur and Banarsidas got delayed as they remained absconded for a long period of time and ultimately charge sheet was filed and case was committed to sessions and was numbered as 38 of 2009. After the evidence was recorded in S.T. No. 91 of 1995, the evidence thereafter was recorded subsequently in S.T. No. 38 of 2009. Needless to mention that both the trials having arisen out the same crime number and subject matter, the nature of the evidence recorded separately by the trial court was more or less same. The Trial Court has referred to the evidence recorded in two separate trials in its judgment. Since, the chain of events being part of the same transaction, the trial court decided the same by a common judgment.
15. Secondly, no argument has been advanced by learned counsels as to how one common judgment delivered in the two sessions trials arising out of the same crime number. has caused prejudice to the applicant. None of the findings has been assailed on the ground that court has erroneously mixed up the oral testimonies in such a perplexed manner that conviction has resulted in miscarriage of justice. We also do not find that there is any pleadings/grounds raised in memo of appeal to this effect. Section 465 Cr.P.C. provide that a mere irregularity would not render a judgment liable to be interfered with unless it is demonstrated that it has resulted in miscarriage of justice;
16. Lastly, despite repeated query being made, the learned counsels for the applicant could not show as to whether there was any bar for the Court not to decide two trials together by a common judgment if evidence in the two trials arising out of the same case crime number are recorded separately.
17. The next argument is that even if the prosecution case is accepted, it at the most fall under the fourth exception to section 300 I.P.C. i.e. culpable homicide not amounting to murder and so the punishment should have been under Part II of Section 304 I.P.C.
18. If we carefully examine the evidence available on record, we find that the genesis of the occurrence was not of so grave nature that it would provide a sufficient cause for a man, being a sitting MLA a well known public figure to loose his temperament to such an extent that he would pick up the fire arm to shoot an unarmed innocent person particularly when there is no allegation that there was any prior physical altercation. The applicant, who was a sitting MLA, was fully protected as he was provided with a security personnel, had no reasons to take law in his hand and kill an innocent person. Moreover, the victim was carrying no weapon of any nature and after getting down from his jeep was standing with folded hands as this fact has been consistently stated by the witnesses of fact. As such, there was no reason for the applicant, who was a sitting MLA of a ruling party to open fire causing fatal injury on the vital part i.e. neck of the victim. and then to plead innocence that there was no mens rea to commit murder.
19. Learned AGA has referred to the word 'fight' used in the exception clause and submitted that all the prosecution witnesses have taken the consistent stand in their respective testimony that victim after getting down from the jeep stood with folded hands to tender an apology. The applicant who was fully armed with weapons had surrounded him and his jeep. So there was no actual exchange of physical assault to call it a 'fight' between the two, therefore, the case in hand does not fall under exception IV of Section 300 I.P.C.
20. Now we proceed to consider the remaining points.
21. Learned AGA has further submitted that the trial court has appreciated the entire evidence and has discussed it threadbare while bringing home the offence. It was further submitted that since charge in the same case against all the other accused persons was also framed under Sections 147, 148, 149, 302, 504 and 506 I.P.C. and all of them except the applicant have been held not guilty as charge was not proved against them as such the mere acquittal of the other accused by itself would not cast a cloud of suspicion on the prosecution story. Learned AGA further submits that it was the applicant who had suddenly stopped his jeep in front of the jeep of victim. He abused the victim, he shouted and he took up the gun and fired a shot aiming the victim. The other armed men in his jeep did also get down and though surrounded the victim but none of them exhorted the convict so as to discern that they all had common object or intention to make a deliberate assault upon the victim. So there is no direct involvement of the other accused persons in the commission of the crime at the spot. There was no such unlawful assembly in existence at the relevant time, as such, had no common object to kill the victim. It was an individual act of a sitting M.L.A to open fire at the victim causing his death.
22. It was further submitted that the argument that medical evidence does not co-relate with the prosecution story is based upon the seat of injury and its nature as the direction was downward. According to the learned counsel for the applicant the applicant being shorter than the victim he would have raised his gun upward direction and so the shot must have travelled in upward direction and therefore, the injury caused by gun shot should have been in upward direction. Per contra, learned AGA has submitted that the direction of injury caused by bullet depends upon the place, position, posture of the applicant, movement of the victim while receiving the gun shot injury. The prosecution witnesses have taken consistent stand with regard to manner of incident and leaves no room of doubt on the factum of commission of offence. Merely on the point of direction of injury the prosecution story cannot be rendered doubtful.
23. The applicant has questioned the recovery of the licenced gun of the applicant and according to him it was planted by the police. To this, learned AGA submitted that it was a licensed gun of the applicant. Applicant was legally entitled to possess the gun in his custody but it was recovered from a different place under a tin-shed wrapped in a polythene with live cartridge as well as one empty cartridge. Neither any complaint for its theft/ loss was made by the applicant nor, the applicant ever challenged its recovery. The ballistic expert has proved that the alleged firing was made from the left barrel of the gun of the applicant. Trial Court has found neither recovery doubtful nor, the ballistic expert opinion to be vitiated for any reason and there is no manifest error in judgment while placing reliance upon the same.
24. The further argument advanced on behalf of the applicant is that recovery of the licensed gun of the convict was used as an incriminating material evidence against the accused and so it was mandatory for the prosecution to put specific question about the recovery of the gun and its use in crime but it was not done and out of the eight questions none are related to recovery. The argument is that the manner in which trial court has recorded the statement of the accused under Section 313 Cr.P.C. is far from satisfactory and has caused serious dent to the prosecution case and reliance in this regard has been placed on 2003 (2) SCC 401 Lallu Manjhi v. State of Jharkhanad, 2004 (7) SCC 502 Naval Kishore Singh Vs State Of Bihar, 2009 (4) SCC 769 Inspector Of Customs, Akhnoor J and K v. Yash Pal and Division Bench Judgment of this Court in 2017 (3) JIC 104 (ALL) (LB) Sanjay Maurya And Another v. State Of U.P.
25. Countering the argument based upon the authorities (supra) learned AGA has contended that in all the aforesaid cases the court was dealing mainly with circumstantial evidence. Here is a case where licensed gun was used for committing the offence and was sufficiently proved that the convict had himself fired shot upon the victim. No argument has been advanced as to how the opinion of ballistic expert was wrong. Here is a case of direct evidence of day light murder and there is nothing to demonstrate that witnesses were wholly unreliable. However on the question being put to the accused, if he had to say anything further, the accused did not challenge the recovery of his licensed gun, if it was planted by the police. It was the further submitted that applicant at the Relevant time was a sitting MLA and very influential person, as such no one could have dared to commit this mischief with him. The argument advanced by learned AGA prima facie carries substance.
26. The further argument that no independent witness was produced though the incident took place in the broad day light in public gaze does not impress us. The learned AGA has argued that normally members of the public are hesitant to come to witness Box. When the witnesses produced by prosecution in their statements are consistent so for the allegation made in the FIR and are eye witnesses of day light incident, there is no occasion to disbelieve them. Merely, because the witnesses are closely or remotely related to the victim their statements can not be brushed aside and we see no fallacy in the argument of learned AGA.
27. Yet another argument is that the First Information Report is ante timed. It is argued that circumstances clearly indicate that FIR was ante-timed. According to the learned counsel the compliance of Section 157 of Cr.P.C. is mandatory and had the FIR been in existence as shown to be lodged at 1:10 pm on 23.02.1995 itself, it must have been forwarded to the Chief Judicial Magistrate concerned promptly the same day, but the record shows that it was sent to CJM only on 29.02.1995 as he had made endorsement of 'seen' on it only on 29.02.1995. We are unable to accept it unless it is shown to have been sent only on 29.02.1995, but no such evidence has been led. The next argument as sequel to it is that there was overwriting in the crime Number and sections in the inquest report. The argument is also that the copy of FIR was not sent while dead body was sent for postmortem examination. The learned counsel led us to examine the original record which is available before us. Suffice it to say that the trial court has dealt with this argument in its judgment and has held that merely because the copy of FIR was not sent to the doctor who was to conduct postmortem examination, is not enough to hold that it was not in existence. It has also been held that this by itself would not cause dent to the prosecution case especially in a case of direct evidence.
28. The learned AGA while opposing the bail appllication vehemently argued that the convict was a sitting MLA,Later on became a minister, a public figure has fired a shot from his licensed gun from a close range on a vital part i.e. neck of the innocent unarmed person thereby committed a cold blooded murder in the public place exposed to public gaze. It cannot be presumed, therefore, that convict could not have known the intensity of the shot fired from such a close range and gravity of his act. The fact that the trial was dragged for pretty long 24 years speaks volume of the influence of the convict who was released on bail by sessions judge at the very beginning and continued to be elected for three terms as MLA and also became minister during trial while his party was in power till May, 2017. He argued further that in the circumstances the applicant does not deserve bail merely on ground that he has no other criminal antecedents and has not misused the bail granted to him.
29. In view of the above and considering the nature of offence and the material evidence that led the trial court to hold him guilty of the offense of murder, we are not inclined to grant bail to the convict and the bail application is accordingly hereby rejected.
30. However, in the the circumstances, we deem it just and proper to expedite the appeal. The records have been received, let the process of preparation of paper book be undertaken forthwith and thereafter the appeal may be listed for final hearing in the category of other expedited appeals before the appropriate bench.
31. It is made clear that whatever observations made above are only for the purpose of disposal of bail application.
Order Date :- 22.02.2018 Arun