PINTOO Vs. STATE OF UP

JUDGEMENT

(1.) THE prayer for bail has been made on behalf of the applicants Pintoo, Ajai and Indal Dhobi in case crime no.34/2002 under Section 302/341 I.P.C. P.S. Saini, district Kaushambi after the bail of the applicants was cancelled by an order dated 29.7.2009 passed by the Additional Session Judge/F.T.C. -2 in S.T.No.243 of 2002. The brief facts of this case were that on 17.1.2002 at about 8 p.m., the informant Ram Raj, his brother Bhairo Prasad, and nephews Suraj Pal and Ram Kripal were going to the west of the village for loading onions on a D.C.M. vehicle. As soon as they reached near a pond at the side of the road, the applicants who were lying in wait with country made pistols surrounded them. The accused Pintoo cried out that Suraj Pal should not be allowed to escape and he fired on Suraj Pal with his country made pistol which hit Suraj on his stomach causing him to fall down. Then the brother -in -law (sala) of Pintoo, namely the applicant Indal also fired on him with his country made pistol, but this fire missed. When the witnesses tried to intervene, the accused Ajay threatened them that if anyone intervened in the matter, they would meet the same fate as Suraj Pal. The FIR was registered under section 307 I.P.C but later when Suraj Pal died, the case was converted to one under Section 302 and 307 I.P.C.

(2.) THE accused persons were however granted bail by the then Session Judge by orders dated 1.2.2002 and 16.3.2002. The statement of PW1 Bhairo Prasad was recorded on 21.11.2008 in which he affirmed the version mentioned in the F.I.R. But as his examination could not be completed on that date hence the recording of the evidence was postponed. Further, examination of this witness could only take place on 24.6.2009. On this date when the counsel for the accused cross examined him, PW1 Bhairo Prasad turned hostile, and the prosecution was granted permission to cross examine him.

(3.) IN the background of the reply submitted by Bhairo Prasad PW1 to the show cause notice, the Court issued a notice to the accused applicants in exercise of powers under section 439(2) Cr.P.C as to why the bail granted to them be not cancelled. The accused applicants gave a joint written reply on 15.7.2009 in which they pleaded that the claim of Bhairo Prasad for changing his version at the instance of the accused persons was false. He had voluntarily given the new statement. He had never set up the version of being threatened by the accused until he was called upon to give a reply to the notice under section 181 I.P.C. The subsequent witness Raja Ram P.W. 2, the informant had also not deposed that the accused persons had given any threat to the witnesses that unless they resile from their earlier testimony, they would kill the son of Bhairo Prasad and that the applicants had never abused the bail granted to them. The Session Judge however after examining the matter, recorded a finding in his order dated 29.7.2009 that the accused applicants had extended grave threats to the witness that his other son would meet the same fate as Suraj Pal. In such circumstances no witness could freely depose in Court without fear or pressure and the contention of the accused that PW1 Bhairo Prasad had given this explanation because he was facing a prosecution for giving false testimony in view of the notice under Section 181 I.P.C did not appear to be correct. Significantly it was pointed out that after the notice had been issued to the accused persons as to why their bail should not be cancelled because they were tampering with the witnesses, when the witness PW 2 Ram Raj appeared in Court for his deposition he has fully supported the F.I.R. version in his examination in chief on 8.7.09. It was further observed in the impugned order that if the accused applicants had not threatened Bhairo Prasad PW1 that they would kill his other son Ram Kripal then he would definitely not have changed his version. In these circumstances the Trial Court withdrew the notice under section 181 I.P.C. issued to the witness and cancelled the bail of the accused applicants and directed that the applicants be taken into custody. This order is under challenge in the present case.