These two bail applications have been filed by above-noted accused persons in case crime no. 652/2011 u/s 147, 148, 149, 302, 307, 452, 404 IPC and 7 Criminal Law Amendment Act P.S. Bhamora District Bareilly.
Learned counsel for both sides have already been heard at length on 16.5.2012.
It has been argued on behalf of the applicants that it is a cross-case in which persons from both sides have lost their lives; that accused Dinesh Chandra Sharma has been granted bail in cross-case crime no. 652-A of 2011 u/s 147, 148, 149, 302 and 397 IPC P.S. Bhamora District Bareilly by this Court on 3.11.2011 and in that case it was argued on behalf of the accused aforesaid that it is very difficult to decide at this stage as to which party was the aggressor, so the applicants also deserve bail. It has been further submitted that the prosecution has not come with clean hands in as much as injuries sustained by Rajvir Singh in the incident have not been explained and has not detailed the genesis of the occurrence; that from the side of the applicants Rajvir Singh succumbed to the fire-arm injuries on 17.5.2011 in Siddhi Vinayak Hospital, Bareilly and no explanation had been given by the prosecution about the injuries sustained by him. Contra learned Govt. Advocate and learned counsel for the complainant opposing the bail application have contended that specific role had been assigned to the applicants in promptly lodged FIR; that the accused persons have not only killed two persons in day light but they have also looted their licensed fire-arms, which have been recovered by the police on 8.5.2011. It has been further submitted that accused Santosh Singh has criminal history, he was prosecuted in several criminal case; had also been convicted by the trial Court; his appeal is pending in this Court and that on 27.5.2011 along with co-accused Teetu he got the fire arms used in the incident recovered to the police from the house of Teetu and deceased Rajvir Singh. The defence has concocted cross-version of the incident on legal advice through a delayed FIR lodged by wife of applicant Santosh Singh.
In nutshell the prosecution story is that on 7.5.2011 complainant's father Veer Pal Singh, relative Ratan Singh, Ganga Singh, and Dinesh Sharma were going to their village from Bareilly in a Maruti-van and when at about 7 p.m. they reached village Langura in front of house of Sri Pal Yadav, former Pradhan Rajvir Singh along with Teetu, Acchu, Santosh Singh, Jagannath and Sanjiv Pandit armed with rifle, revolver and gun etc. overtook the aforesaid Maruti-van through their vehicle Bolero. After exchange of hot words, on the exhortation of Rajvir all the accused got down from the vehicle and surrounded the Maruti-van. Veer Pal along with his gun in order to save himself ran into the house of Sripal Yadav, but accused Rajvir and Achchu chased him and killed by firing shots and also looted his gun and cartridges belt which was tied on his waist. In the meantime accused Teetu, Santosh and Jagannath (all the present applicants) chased Ratan Singh who along with his rifle tried to escape, shot fires on him in the open field of Naresh Yadav and also assaulted with butts of weapons, he succumbed to injuries at the spot and these accused took away his licensed rifle and cartridges belt. The FIR of this incident was lodged at police station Bhamora on the written report of Satish Kumar Singh s/o Veer Pal Singh at 7.45 p.m. on 7.5.2011. On 8.5.2011 the police apprehended co-accused Achchu @ Satyavir, Jagannath and driver Sanjiv and also recovered the Bolero vehicle, gun and rifle of Veer Pal and Ratan Singh. Later, on the pointing out of accused Teetu and Santosh Singh, accused Teetu handed over a 315 bore rifle with two live cartridges and a SBBL gun used in the crime to the police.
On the application of Smt. Kamlesh w/o Santosh Singh dated 9.5.2011 addressed to DIG/SSP, Bareilly case crime no. 652-A of 2011 u/s 147, 148, 149, 307, 504 IPC was registered at P.S. Bhamora against Dinesh Chand Sharma, Satish Singh, Suraj Pal, Somendra, Veer Pal Singh and one unknown person, which was converted into section 302 IPC after death of Rajvir Singh in Siddhi Vinayak Hospital, Bareilly.
Learned counsel for the applicants has vehemently argued that in the bail application of Dinesh Chand Sharma in case crime no. 652-A of 2011 it was contended on his behalf that 'it is a cross case and it is very difficult to decide at this stage as to which party was the aggressor', so the applicant deserves bail and accordingly he was granted bail by this Court vide order dated 3.11.2011 in Cr. Misc. Bail Application no. 28737 of 2011. It is true and has not been disputed on behalf of the State, but this alone cannot be a ground for bail for the present applicants. Their case is to be adjudged according to the facts and circumstances of the case and supporting evidence collected by the investigating officer. There is basic difference in both the FIRs. The FIR of the instant case was lodged by son of deceased Veer Pal Singh within an hour of the incident and he went to the police leaving dead bodies of his father and relative Ratan Singh at the spot. It is also true that injuries sustained by Rajvir Singh who later died have not been explained in the FIR, but it is trite law that FIR is not the encyclopedia of the prosecution story. The explanation has come in the eye witness account of witnesses recorded by the investigating officer of the case. The FIR of cross-case i.e. 652-A of 2011 had been lodged a week after the incident i.e. on 13.5.2011 and till then three accused were apprehended along with arms of both the deceased and the complainant Smt. Kamlesh very well knew about the FIR of this case. The injuries found on the person of both the deceased corroborate the FIR. All the three applicants have been specifically charged to have killed Ratan Singh after chase in the open field of Naresh Yadav. The deceased had not only sustained fire arm injuries but several lacerated wounds as ante-mortem injuries have been found on his person, which were allegedly caused with butts of fire-arms.
It was contended on behalf of the applicants that the only eye witness of the case is Satish Kumar Singh and he has not corroborated his own FIR in as much as he has stated in his police statement that accused Santosh Singh was armed with lathi. It is true but we find overwriting on the word 'lathi' in statement u/s 161 CrPC of the complainant, who is not the solitary eye witness in the case. There are other witnesses, who were inmates of the Maruti-van and are accused in cross-case lodged on the report of Smt. Kamlesh apart from villagers of village Langura. Accused Santosh Singh is indisputably a previous convict, although his appeal is pending before this Court.
Release of accused in cross-case does not ipso facto entitle bail to the applicants. Their bail plea is to be adjudicated on the basis of averments made in the FIR, their role in the incident, nature and gravity of crime, its impact on public at large, quality of evidence connecting them with the crime and their own antecedents. Principle of estoppel cannot be attracted on the arguments advanced in bail application of accused or the pleas taken therein as at that time the accused is confined in jail; his bail application is drafted on the instructions of his pairokar who are some times illiterate villagers and then all possible arguments are advanced to get him released on bail. In our criminal law there is no bar for an accused to take plea of alibi along with right of private defence, if the fact situation so demands, which are difficult to reconcile and altogether opposite to each other.
The instant case is a glaring example of election rivalry between the two groups of same village which is a threat to our democratic system. According to witness Dinesh Chand Sharma his wife won election of Gram Pradhan while deceased Rajvir Singh was defeated. If such incidents frequently take place then how a citizen would exercise his right of vote without fear or favour. Both the deceased are sixty years and above in age and have been killed in the dense population of other village in broad day light.
Considering the facts and circumstances of the case as also the nature of accusation against the applicants, supporting evidence, and severity of punishment in my opinion, the applicants do not deserve bail. Their bail applications are accordingly rejected.
Date of order: 18.5.2012 Imroz/