Anant Vijai vs State of U.P.

Shiv Shanker, J.—This first bail application has been moved on behalf of applicant Anant Vijai in case Crime No. 1267 of 2007, under Sections 147, 148, 149, 302, 307, 323 and 504, I.P.C., P. S. Kotwali Nagar Etah, district Etah.

Heard learned Counsel for the applicant and S./Sri R.C. Pandey and N.D. Shukla, learned Counsel for complainant and learned A.G.A., as well as perused the record.

Learned Counsel for the applicant submitted that the deceased sustained injuries on his thighs. Therefore, there was no intention to kill the deceased. It is further contended that there was no repetition to cause injuries on the person of injured. Therefore, the same were not caused with intent to commit murder of deceased. Shop in question has already been vacant. In such circumstances, the incident could not be occurred by the applicant. It is further contended that one person was shot dead and two persons sustained injuries in the alleged incident on the side of complainant. On the other hand, three persons Anant Vijai (present applicant) Sanju Jain and Agyan Vijai sustained injuries Nos. 1, 4, 3 and 8 respectively and both the sides lodged the F.I.Rs. In such circumstances, there is a cross case regarding the present occurrence. In such circumstances, it cannot be determined at this stage as to which party was aggressor. It is further contended that the applicant had licensed NPB-32 pistol which was deposited by him in M/s. Chauhan Gun house on 6.10.07. A copy of certificate issued by the firm is available on record vide Annexure-14. Therefore, such pistol could not be used by the applicant at the time of alleged incident on 12.10.07. Therefore, the applicant has been falsely implicated in this case.

Learned Counsel for complainant and learned A.G.A., have urged that the applicant is main assailant to commit murder of deceased and the cross F.I.R. has been registered on the basis of application moved u/s 156(3), Cr.P.C. At this stage, injuries shown to be sustained on the side of accused-applicant are superficial in nature as contusion, abrasion, abraded contusion etc., were found. Cross case has been manufactured for taking benefit and pressurising the prosecution witnesses by naming all the injured persons including the deceased. Therefore, cross version is not liable to be considered.

Applicant Anant Vijai is named in the F.I.R. alongwith four named co-accused persons and the same has been lodged within 55 minutes after covering distance of 1 kilometre from the place of occurrence. Therefore, the F.I.R. has been lodged promptly against the present applicant also.

It has been alleged in the F.I.R. that the applicant alongwith four named accused persons reached at the shop of complainant and his both younger brothers as they were carrying on sweets business in the said shops and accused party is owner of the said shop. He abused them for vacating the shop, wherein it was objected by the informant and his two younger brothers as the case was pending in the civil court regarding shops. Thereafter all the accused persons including present applicant made firing upon them. Consequently, shots of present applicant were hit on the thighs of deceased who succumbed to injuries in the hospital on the same day and co-accused Hari Sahai and Agyan Vijay caused injuries on the person of injured Bhojraj and co-accused Sanju Jain also caused butt injury on the person of informant Ram Prakash. Prosecution version is also supported with the post mortem report of the deceased as ante mortem injuries were found on the body of deceased as mentioned in the post mortem report.

This is case of a broad day light murder, wherein two persons have also sustained injuries in the heart of city Etah. The contention of learned Counsel for the applicant has no force that there was no intention to cause death of deceased as the said fire arm injuries were found on the front of right thigh and left thigh of deceased. This shows that the applicant had used his weapon two times with intent to cause the death of deceased. It depends upon the chance when the weapon was used at in what stage, the deceased sustained fire arm injuries merely on both the thighs and it cannot be deemed that there was no intention to cause the death of deceased. It is worthwhile to mention here that the applicant was having deadly weapon as fire arm and he caused two fire arm injuries on the both thighs of the deceased and he was taken for his treatment to hospital just after incident and he was declared dead. When the applicant used deadly weapon upon the body of deceased, he knew that it was dangerous at the most and it may cause the death of deceased. Therefore, it cannot be presumed that the applicant was not having intention to commit murder of deceased. Motive is also established against the applicant. Shops were in the ownership of applicant side and deceased including two injured brothers are tenant in the said shop and several litigations are pending in between the parties regarding shops in civil court Etah. Therefore, murder has been committed by the applicant and Ors. for vacating the shops forcibly as there was no faith in the Court in getting the orders in their favour for its vacation. So far as the contention of cross case is concerned, the applicant alongwith co-accused Agyan Vijay and Sanju were arrested by the police after incident on the same day. They were also taken to hospital on 13.10.07 by the concerned countable, where they were medically examined and they sustained injuries as alleged by learned Counsel for the applicant. It is worthwhile to mention here that all the three injured on behalf of accused side sustained injuries as contusion, abraded contusion, one minor abrasion and contused swelling etc. These injuries are superficial in nature. Therefore, prosecution is bound to explain such type of superficial injuries.

It is also worthwhile to mention here that applicant alongwith two co-accused were arrested on the same day of incident and they were produced before the concerned Magistrate. However, they did not move application regarding cross version before the concerned Magistrate at the time of giving judicial remand. The applicant was also taken in police custody. He could also move application regarding version of cross case to the concerned Magistrate or application regarding cross-case could be sent from the jail to the concerned Court but they have not made any complaint to the concerned Magistrate regarding cross version. It appears that wife of applicant has moved an application u/s 156(3), Cr.P.C., on 23.10.07 to the concerned C.J.M. after 11 days of the alleged occurrence by taking legal advice for making out a cross case and it was registered on 14.11.07. Therefore, it appears that theory of cross case has been concocted for taking benefit of bail as well as pressurising injured witnesses and eye-witnesses of the present case.

It is also worthwhile to mention here that the alleged injuries sustained by the applicant and two others were superficial in nature. In such circumstances, complainant party could be beaten by any weapon like lathi, danda etc., but using of deadly weapon by the applicant and Ors., it shows that the accused has exceeded his right of private defence. There was no occasion to make firing upon the deceased as well as injured person. In such circumstances also, no benefit of cross version can be given at this stage.

It is worthwhile to mention here that the applicant was having licensed pistol which was allegedly used in committing murder of deceased but plea has been taken on behalf of applicant that the weapon of applicant was deposited in the firm of M/s. Chauhan Gun House on 6.10.07. No reason has been given on behalf of applicant that what was need to deposit his licensed pistol in the said firm before six days of the alleged incident while the licensed pistol was given to the present applicant for his security purpose and always to keep it with him. In absence of any reason, the depositing of weapon in the said firm also appears to be suspicious. In this regard, police remand was taken on behalf of applicant and the said revolver was recovered from the above firm by stating that the said weapon was deposited by him in the said firm after incident on the back date. Therefore, theory of depositing weapon in the said firm before six days of the alleged incident has become falsified.

Therefore, the applicant is named in the F.I.R. which was lodged promptly against him also and he is main shooter to commit murder of deceased. Prosecution version is supported with the post mortem report of the deceased. This is the case of a broad day light murder, wherein two persons also sustained injuries in the heart of the city Etah. Motive is also established against the applicant.

After considering the facts and circumstances of the case, I do not find any force in the submissions made by learned Counsel for the applicant. Therefore, his bail application is not liable to be allowed.

Consequently, bail application of the present applicant is hereby rejected.

There will be no effect of above finding in the trial.