NAMWAR YADAV @ YASHPAL Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri Rajiv Lochan Shukla, learned counsel for the applicant, Shri Sudish Kumar learned counsel for Opposite Party, learned A.G.A. for the State and perused the record.

(2.) Learned counsel for the applicant contends that the applicant is not named in F.I.R. and has been falsely implicated subsequently after a period of more than three months from the incident on the basis of disclosure statement of co-accused Viradar Yadav @ Randheer @ Raju; that as per the averments made in F.I.R, on 4.5.2013 at about 7.30 p.m. Ajay Singh, son of first informant along with his wife Smt. Meera Singh were coming after watching movie by their vehicle Fortuner Car and when they reached near Misha Building Material at Ajay Vihar Colony turn, 3 - 4 persons surrounded the car and started indiscriminate firing on them causing multiple fire arm injuries to Ajay Singh and his wife and the vehicle was also damaged; that in his statement under Section 161 Cr.P.C. recorded after three days, the injured Ajay Singh has named four persons Indradev Singh @ BKD, Varun Singh, Rakesh Yadav and Viradar Yadav @ Randheer @ Raju as the persons who fired at him and his wife indiscriminately in the incident in question and were identified by him in the light; that it has also been stated that in the meantime Raghavendra Pratap Roy @ Sibu had also come and when he fell unconscious, all of them left presuming him to be dead; that after a period of five months, the confessional statement of co-accused Viradar Yadav @ Randheer @ Raju under Section 161 Cr.P.C. was recorded, wherein he is alleged to have stated that there is old enmity of Indradev Singh @ BKD and Rajesh Singh with injured Ajay Singh on account of contractor-ship and so Indradev Singh @ BKD and Rajesh Singh formed a gang and he (Viradar Yadav) was also member of gang along with Raghavendra Pratap Roy @ Sibu, Kamlesh Singh, Varun Singh and Namwar Singh, the applicant, and others; that he has also alleged to have stated that in the year 2008 they were arrested and after release from jail when Raghavendra Pragtap Roy @ Sibu returned from Maharashtra, the planning or causing death of Ajay Singh was made at the house of co-accused Rajesh Singh in meeting with Rajesh Singh, Indradev Singh @ BKD, Rakesh Yadav, Hakadu, Varun Singh, Raghavendra Pragtap Roy @ Sibu, Namwar Singh and himself; that it is alleged to have been further stated in the above confessional statement that he, Indradev Singh @ BKD, Rakesh Singh, had come by JHV while Varun Singh, Rajesh Singh, Hakadu and applicant Namwar Singh followed them on their motorcycles and all of them indiscriminately fired at Ajay Singh with an intention to cause his death; that the confessional statement of co-accused Viradar Yadav in police custody is neither admissible in evidence nor is binding on the applicant; that except the above confessional statement of co-accused, there is no other evidence regarding the alleged involvement of applicant in the crime in question; ;that the applicant had no motive to make an attempt on the life of injured Ajay Singh or his wife Smt. Meera Singh and neither there is any whisper of any enmity of applicant with the injured nor the applicant ever entered into alleged conspiracy with co-accused persons; that the co-accused who were identified and named by injured may have participated or fired at injured Ajay Singh in the incident in question; that nothing incriminating has been recovered from the possession of applicant; that the trial is in progress and all the witnesses of fact have already been examined; that the injured has a criminal history of four cases, including two cases under Section 302 I.P.C, one case under Section 307 I.P.C, and the 4th case under Section 3/4 U.P. Gunda Act, copies filed at Annexure-19; that subsequent to the incident in question, the applicant has been falsely implicated in two more cases under Section 302 I.P.C. and a case Gangster Act has also been slapped on him; that in Case Crime No.208 of 2013 and 120 of 2014 under Section 302 I.P.C. the bail applications of applicant have been rejected by the Sessions Court and are pending before this court except it has not been moved before this Court as yet in case under Section 3/1 Gangster Act; that the criminal history of applicant has been explained in paragraph 12 to 19 of the affidavit to bail application and copies of bail orders have been annexed as annexure-1 to annexure-4 with the rejoinder affidavit dated 26.5.2016; that the case of applicant is distinguishable from co-accused persons whose names were disclosed by the injured, as the persons identified by him; that the applicant may not be considered to be author of any of the injuries of injured Ajay Singh and his wife Smt. Meera Singh; that the applicant is not a previous convict and has no other criminal history; that the applicant undertakes that he will not make misuse the liberty of bail; that the applicant is in custody since 18.07.2014.

(3.) Per contra learned AGA vehemently opposed the prayer of bail and contended that the applicant is a hardcore criminal and has attempted on the life of injured Ajay Singh due to old enmity in conspiracy with co-accused persons by indiscriminate firing on the injured; that bail applications of co-accused Viradar Yadav @ Randheer @ Raju and Varun Singh have been rejected by this Court vide orders dated 30.7.2014 and 25.4.2014 respectively; that the applicant if released on bail may make misuse the liberty of bail.