Reserved
Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32091 of 2017 Applicant :- Saket Sahu Opposite Party :- State Of U.P.
Counsel for Applicant :- Dileep Kumar Counsel for Opposite Party :- G.A.,Jitendra Kr.Singh,Pankaj Kr.Shukla,Rajiv Lochan Shukla
Hon'ble J.J. Munir,J.
Heard Sri Dileep Kumar, learned counsel for the applicant, Sri Deepak Dubey, learned counsel appearing for the complainant and Sri Saqib Meezan, learned AGA for the State.
This is an application for bail on behalf of Saket Sahu in Case Crime No. 162 of 2017, under Sections 147, 148, 149, 307, 302 IPC P.S. Kotwali Mohoba, District Mahoba.
The submission of the learned counsel for the applicant is that the occurrence took place on 23.02.2017 at 3:00 in the morning hours, regarding which an FIR was lodged on 23.02.2017 at 1.30 P.M. by one Devesh Singh @ Dara against Saket Sahu (applicant), Saurabh Sahu, Tarik, Harsh Singh and 3-4 unknown offenders alleging that they opened indiscriminate fire at Rakesh Singh, an independent candidate from No. 230 Assembly Constituency when Rakesh Singh allegedly got information that Saket Sahu was alluring voters by unlawful means and went over to the place where Saket Sahu was indulging in this malpractice; that according to the FIR indiscriminate fire opened by Saket Sahu and his companions led Rakesh Singh to receive gun shot injuries; that relating to the same occurrence another FIR was lodged by Siddh Gopal Sahu, father of the applicant at 8.05 A.M. on 23.02.2017 giving rise to case crime no. 161 of 2017, under Sections 147, 148, 149, 307, 427 IPC, P.S. Kotwali Mahoba, District Mohoba against Aniruddh Singh @ Himanchal, s/o Arimardan Singh, Abhimaneu Singh, Pervez, Siddharth Boudh, Haseeb @ Gudi, Kallu @ Meda, Samir Ansari, Samir and Sudhir Singh and six unknown offenders alleging that in a pre-planned manner they opened indiscriminate fire at the vehicle of the informant's son Saket Sahu wherein Saket Sahu and two passers by received gun shot wounds.
Sri Dileep Kumar, learned counsel for the applicant has invited the attention of the Court to the fact that the deceased Rakesh Singh was admitted to G.S.V.M. Medical College Kanpur in its Lala Lajpat Rai Associated Hospital on 23.02.2017 at 7:29 A.M. and thereafter absconded as the summary shows at the foot of the document at page 41 of the paper book; that an information about his abscondence was sent to the police by the hospital, a fact appearing at page 32 of the paper book that the deceased Rakesh Singh was thereafter admitted on 23.02.2017 at 5.00 P.M. to Madhuraj Hospital, Swaroop Nagar, Kanpur Nagar brought his brother Ajay Raj as Sri Dileep Kumar points out from the document at page 46 of the paper book; that in the same document it is pointed out by learned counsel that in the column of the statement of patients/brought by, it is mentioned that Rakesh Singh (now deceased) sustained bullet injury from a shot by someone in a crowd and that it was not known how he received the injuries; that subsequently Rakesh Singh was admitted to Sahara Hospital, Gomti Nagar, Lucknow on 24.02.2017 and passed away there on 26.02.2017 at 9.15 A.M., the document regarding which is annexed at page 50 of the paper book being a police information given by the Sahara Hospital; and that while in the post mortem report a single lacerated wound on the back side of the head has been recorded, a deeper evaluation of the same by the Forensic Science Laboratory in their expert medico legal opinion dated 31.05.2017 at page 71/72 of the paper book shows that the opinion of the doctor goes to the following effect:
“To cause the fracture of the occipetal bone, it requires at least 1500 pounds/sq. Inch of force that can crack the occipetal bone which is the hardest bone. This type of projectile force can cause the fracture of occipetal bone which may be a moving projectile like big pointed stone or blunt end rod struck, etc (other than firearm injury), or sudden collision against hard object on the occipital area.
As there is inter cranial tension raised due to injury, leading to coma and shock and thus, death can be precipitated.”
(emphasized by learned counsel for the applicant during his submissions) Sri Dileep Kumar has further submitted that the injury report relating to the applicant at page 74 of the paper book clearly shows a fire arm wound of entry sited at the left side of the hip with a fire arm wound of exit on the right side of the inguinal region which is evident from the injury report dated 23.02.2017 and shows that the injuries were examined at 3:35 A.M. with the patient being brought by his father in police vehilce with the No.100 facility; that thereafter the applicant was admitted to Regency Hospital, Kanpur on 23.02.2017 at 7:24 A.M. where the fire arm injuries were again recorded both of entry and exit and in the history of the case at page 76 of the paper book there is a mention that the patient received gun shot injury at the hands of Himanchal, Abhimanu Singh and some others and, that the applicant was discharged from hospital on 09.03.2017, the discharge summary being available at pages 78/79 of the paper book.
It is the submission of Sri Dileep Kumar on these facts that charge sheet has been filed in both case crime nos. 161/2017 and 162/2017 that are cross version of the same incident dated 23.02.2017; that in the second, there is no recovery of any weapon from the person or at the pointing out of the applicant though the applicant was injured by gun shot and removed to the hospital by the police in the vehicle of No.100 facility; that in the third place two empties recovered from the place of occurrence along with the license pertaining to Rifle No. 6035 in the name of Aniruddha Singh @ Himanchal s/o Arimardan Singh; that in the fourth place it is submitted that once occurrence involved opening of fire on both sides it cannot said whose shot hit the deceased Rakesh, and, there is no evidence ocular or medico-legal to show that it was the applicant's shot that hit the deceased; and, that it is further submitted that accepting the situation to be that of a cross case, applying the principle it is difficult to judge at this stage as to which party are the aggressor, whereas this Court has granted bail to as many as six accused of case crime no. 161 of 2017 (treating case crime no. 161/2017 and 162/2017 to be cross cases) vide order dated 11.12.2017 passed in Criminal Misc. Bail Application No. 31855 of 2017 in favour of Himanchal Singh, in Criminal Misc. Bail Application No. 2923/2017, Abhimanue Singh and 4 others vs. State of U.P. vide order dated 11.12.2017 and in Criminal Misc. Bail Application No. 29343/2017, Kallu @ Bhenda vs. State of U.P. vide order dated 11.12.2017.
At this stage much emphasis has been laid to the orders made in the bail applications last mentioned passed in relation to case crime no. 161 of 2017 through which the Court has been taken where Sri Dileep Kumar has impressed upon the Court the fact that in all the applications it has been urged that the incident took place suddenly between two sides, where charge sheet was submitted in one case under Section 307 IPC and in the other under Section 302 IPC. There are cross cases relating to the same incident and on that basis all the accused in the case crime no. 161 of 2017 have been enlarged on bail by this Court, as Shri Dileep Kumar puts it.
Sri Deepak Dubey, learned counsel for the complainant has strongly opposed the bail plea with the submission that it is not a cross case; that Saket Sahu committed two offence with an interval of 20 minutes in a radius of 1-1/2 kilometers; that in the first shooting Rakesh Singh, the deceased was the victim in regard to which the present crime no. 162/2017 has been registered and in the second shooting someone who is not identified but received injuries himself where the applicant Saket Sahu and Tarik received gun shot injuries in the exchange of fire which has given rise to case crime no. 161/2017; that in this connection the learned counsel for the complainant has invited the attention of the Court to the FIR lodged by Election Commission against the Saket Sahu annexed as Annexure CA-2 to the counter affidavit filed on behalf of the complainant with regard to allurement of voters; that it has further been argued that the injury report of Saket Sahu at page 74 is a forged and procured document from the District Hospital, Mahoba, a fact evident upon comparison with the medico legal examination done at the Regency Hospital, Kanpur at 7:24 A.M. on 23.02.2017 which shows the wound of entry and exit which is the other way record from what has been recorded in the medico legal report of the District Hospital, Mahoba; that it has also been argued that place of occurrence shows in the injury report is in front of the house of the Saket Sahu contrary to the FIR lodged by his side where place of occurrence is at Kabrai located 20 Kilometers away from his home. It has been further urged that the expert medico legal opinion from the FSL, Lucknow, a copy of which is annexed at page 71 of the bail application a report endorsed to C.B.C.I.D. and authored by Dr. G. Khan is a fabricated document as demonstrated by the record and for the purpose the complainant relies on the FSL report dated 06.03.2017 annexed as Annexure CA-1 of the counter affidavit dated 21.11.2017.
Learned AGA has also opposed the prayer for bail and has adopted the submission of learned counsel for the complainant.
Considering the overall facts and circumstances, in particular, the orders passed by this Court in three different bail applications relating to case crime no. 161 of 2017 registered on the basis of FIR lodged by the father of the applicant, it, prima facie appears to be a cross version of the occurrence reported by the father of the applicant giving rise to case crime no. 161/2017 last mentioned where it cannot be said as to which party were the aggressor and that can best be judged at the trial; the further fact that the bail has been granted to all the accused of case crime no. 161/2017 treating it to be a cross version of the present crime, that is, case crime no. 162/2017, the fact that there is no ocular version or medico legal evidence or other forensic evidence at this stage to show that it was the applicant's shot that hit the deceased, without expressing any opinion on merits, this Court find it to be a fit case for bail.
The bail application is accordingly allowed.
However, anything said in this order will not be construed as expression of opinion by this Court on merits of the case that is absolutely open on all issues to be judged by the trial court uninfluenced by this order.
Let the applicant Saket Sahu involved in the aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned with the following conditions:
1. The applicant shall not tamper with the prosecution evidence.
2. The applicant shall not pressurize the prosecution witnesses.
3. The applicant shall appear on the date fixed by the trial Court.
4. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
In case of default of any of the conditions enumerated above, it is open to the opposite party to approach this Court for cancellation of bail.
Order Date : 29.03.2018 Imroz