Abhay Tiwari vs State Of U.P.

Heard learned counsel for the applicant, learned counsel for the informant, learned A.G.A. for the State and perused the record.

This bail application has been given by the accused applicant Abhay Tiwari in Case Crime No. 525 of 2019, under Sections 147, 148, 149, 302 I.P.C., P.S.- Kotwali, District Basti.

Learned counsel for the applicant has submitted that the accused applicant has been falsely implicated in this case. It is submitted that FIR was lodged by Shiv Prasad Tiwari informant in respect of incident dated 9.10.2019 took place at 10.45 AM whereas FIR has been registered on the same day at 4.28 PM. In the FIR eight persons have been named and two persons have been shown as unnamed. The allegation in the FIR is that the deceased happens to be nephew of the informant and he was a student leader therefore with regard to monopoly of student politics there was inimical relationship of the deceased with the accused persons and an FIR was also lodged against them for attempt to murder. They all wanted to kill the deceased. On the fateful day when the deceased was talking with Manoj Kumar and Jai Prakash, accused persons came on motorcycle and surrounded the deceased and after causing firing on him caused his death. There is specific mention in the FIR that two unknown assailants have been caught hold on the spot and are in the custody of police and incident has been seen by Raj Kishor and several other persons. The FIR itself shows that that informant was not eye witness as it has been mentioned that he reached the police station after getting information of the incident.

Submission of learned counsel for the applicant is that accused applicant and another accused Anurag Tiwari was subsequently named by the informant in his statement under Section 161 Cr.P.C., which was recorded on same date. In respect of arrest of the accused and one more Anurag Tiwari, it is on record that the police reached on the spot after hearing sound of firing. The local police reached to the clinic of Dr. Ramendra Chaturvedi where crowd told that assailants who caused firearm injuries to the deceased have fled away. Thereafter, police reached to Mangla Kali Gali for search of the assailants where two persons were found turning their bikes very hastily. Thereafter, they were surrounded with the help of local persons and arrested by the police at 12.10 PM who disclosed their names to be Anurag Tiwari and Abhay Tiwari (present applicant). The pistol was recovered from the accused applicant. It was found that pant of Anurag was blood stained whereas shirt of present applicant was also blood stained.

Submission is that FIR which was lodged by Shiv Prasad in respect of murder of Aditya Narain makes allegation that two unknown assailants a reference of them has been made in the FIR itself were arrested by the police. It is submitted that if they were so arrested and FIR was lodged subsequent to their arrest after about four hours it appears to be strange that their names were not mentioned in the FIR. Further submission is that eight accused persons were named in the FIR, except the accused Abhijit Singh all seven accused persons have been exonerated and the informant and witnesses started disclosing names of other persons. It has been submitted that allegation is that Anurag and Abhay Tiwari were seen causing firearm injuries to the deceased and both were arrested by the police. The eye witnesses have stated that accused applicant with other co-accused caused firearm injuries, post mortem report shows that the deceased has died sustaining firearm injuries and total number of firearm wounds found on the dead body are four, out of which three are entry wounds and one is exit wound.

Learned counsel submitted that statement of the informant and other witnesses cannot be relied as they had given different description with regard to involvement of the accused persons in the FIR and seven named persons have not been found involved in the commission of offence. One named accused Abhijit against whom charge-sheet has been submitted, has been released on bail by order dated 17.9.2020 passed in Crl. Misc. Bail Application no. 20792 of 2020. His implication in the commission of crime appears to be afterthought and there no legal evidence against the accused applicant and the recovered pistol is not linked with the commission of offence. Learned counsel has also referred to the statement of witness Ashish Kumar Shukla who has stated that on the way the deceased made a statement to him that Abhijit, Mannu Pandey and others have caused this incident. Submission is that in that statement also name of the accused applicant is not mentioned. In the statement of eye witness Manoj Tiwari also name of the accused applicant does not find place nor he has stated that accused applicant caused firearm injuries to the deceased. IO has subsequently manipulated certain witnesses after a long delay in order to implicate accused applicant. Further submission is that there is no criminal history of the accused applicant and charge-sheet has already been filed after police investigation and applicant is prepared to furnish sureties and bonds, therefore, there is no possibility of his either fleeing away from the judicial process or tampering with the evidence. Applicant is languishing in jail since 9.10.2019 and undertakes that he will not misuse the liberty of bail, if granted and cooperate in trial.

Learned A.G.A. and learned counsel for the informant have vehemently opposed the prayer of bail and submitted that accused applicant was caught hold by the police at a small distance from the place of occurrence as local public gathered there along with police and the assailants had managed to escape towards the area where the police has subsequently arrested them. From the possession of both accused, pistol which was used in the commission of offence, was recovered and they also made confessional statement to the police. The name of the accused applicant finds place in the statement of informant whose statement was recorded soon after lodging of the FIR and as such no benefit can be given to him on account of fact that his name has not been mentioned in the FIR. It has been pointed out that eye witness Vijay Narain has also stated to the IO that accused applicant with others caused firearm injuries to the deceased and ran away from the place and accused applicant and other accused who fired in the incident were caught by the police with the help of local people. Similar kind of statement has been made by eye witness Jai Prakash who has also stated that accused applicant and another co-accused caused firearm injuries and they were arrested with the help of local public at some distance from the place of occurrence. Therefore, learned counsel for the informant and learned AGA submitted that not only accused applicant has been seen by several witnesses causing firearm injuries resulting in death of the deceased but also he was arrested at close distance from the place of occurrence by the police and the weapon used in the commission of offence was also recovered from the accused applicant.

It has been submitted that accused applicant was an instrumental which was hired for commission of offence therefore no sympathetic view should be taken against such accused who happens to be habitual killer and merely because out of seven accused persons, six accused persons have been exonerated the accused applicant is not entitled to be released on bail looking into his distinguishing role in the commission of offence and because of fact that after investigation charge-sheet has been submitted against him.

Having heard learned counsel for the applicant, learned AGA for the State and learned counsel for the informant and considering the fact that two unknown persons who caused firearm injury were arrested by the police, their names came immediately after the incident when the informant was examined by the police; several eye witnesses have stated that the accused applicant caused firearm injuries by which deceased died; in the incident deadly weapon has been used for the commission of offence and it is day light murder case which shows highhandedness and extreme culpability on the part of the accused applicant, therefore, looking to the gravity, nature and magnitude of the offence and the manner in which offence has been committed, severity of punishment and complicity of the accused applicant and considering the entire facts and circumstances of the case, I do not find it to be a fit case for enlarging the applicant on bail at this stage.

The bail application is, accordingly, rejected.