RAGHUVIR Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellants/ applicants and the learned AGA, Sri Rahul Srivastava. A prayer for bail to the appellant has been made in this criminal appeal arising out of the conviction of the appellants to by order of the Additional Session Judge, Court No. 4, Ghaziabad, dated 27.1.07 convicting and sentencing the appellants under sections 302/149, 307/149, 147 and 148 IPC, P.S. Dhaulana, in S.T. No. 612 of 1994 The incident in question took place at 8 am on 26.10.1991 and the FIR was lodged at 9.45 am by Devendra Singh (PW1) who was the real brother of the deceased Sita Ram. Three persons Smt. Anaro, Smt. Devo and Denesh Pal received injuries in this incident. PW1 Devendra Singh and PW3 Smt. Anaro, have been produced as eye witnesses. It was argued by Sri V.C. Tiwari, Senior Advocate, that the injured persons have filed affidavits in this case during trial on the basis of which the accused were granted bail by the learned Sessions Judge, but the same has been suppressed by the prosecution, and therefore an adverse inference be drawn against the prosecution and the prayer for bail be allowed. Six persons are said to have fired on the deceased but he had received only six entry and two exit firearm wounds. It has been elicited in the cross- examination of PW4 Dr. A.K. Rastogi, who conducted postmortem on the deceased that said injuries could be the result of two fires and that they were mainly on the left side. Hence, the number of assailants have been exaggerated. It was further argued that Dinesh Pal, who was an independent witness and had admittedly received firearm injury was not examined. That even Dinesh Singh, the informant who was a real brother of the deceased, had not received any injury nor was he fired upon, and therefore his presence at the spot was doubtful. It was further argued that only Smt Anaro has been examined and she has not received any firearm injury and her blunt object injuries which have been attributed to the butt end of a gun are an afterthought. Smt. Devo, the third injured was also not examined and she has also only received blunt object injuries. The stomach of the deceased was empty and the intestines were loaded belying that the incident had taken place at 8 a.m. and that it could have taken place at 4 a.m. The submissions of the learned AGA on the other hand were that not much value can be assigned to the affidavits which had been filed at the trial stage, as legal evidence is only the evidence recorded in Court. Moreover, such affidavits could always be filed out of some coercion, and that the defence was not barred in producing them as defence evidence. The evidence of Dr. A.K. Rastogi elicited in this cross- examination that the six injuries to the deceased could have been the result of only two fires was only his opinion evidence and the Court could have preferred the eye witness account to the opinion evidence. Also all the accused could not escape common liability for the offence in view of section 149 IPC. Non-appearance of the injured Dinesh Pal was not fatal for the prosecution and simply because a witness has been won over or threatened not to appear in the witness box, could not afford a ground for discounting the prosecution case in toto. The appellant Raghuvir Singh was the Pradhan, who had declared the land of the deceased to be land belonging to the LMC and the deceased Sitaram was engaged in a litigation with Raghuvir Singh and thus, a direct enmity with Sitaram is alleged. Hence it was not very material if Dinesh Singh the informant had not been injured in the incident. In any case it is not necessary that firing should be resorted to on all the persons present at the spot. In the FIR itself it was stated that Smt. Anaro, mother of the deceased, arrived after the incident when she was beaten with the butt ends of the gun and it could not be said that her injuries do not corroborate such an assault or that they were the result of an afterthought. There are two eye-witnesses in this incident and one of them Smt. Anaro is the injured witness, hence it was not necessary that the prosecution witnesses be multiplied. The incident had taken place in broad-day light at 8 a.m. The report was lodged promptly at 9.45 am. It was a purely speculative argument which cannot demolish the eye witness account, especially as three persons received injuries in the incident, that as the stomach of the deceased was empty and the intestines were loaded, hence the incident had taken place at 4 a.m. In this view of the matter without expressing any opinion on the merits of the case, we are of the view that the appellants/ applicants Raghuvir, Omvir, Rajiv, Sanjeev and Yashvir have made out no case for bail. However, as it has been mentioned in the 313 Cr.P.C statement itself that one of the accused, Sabhajeet Singh is aged 90 years, we think that Appellant No. 3, Sabhajeet, may be released on bail, to the satisfaction of the Court concerned in the aforesaid case. Bail to the other appellants is refused. The hearing of the appeal is expedited.