Gorakh Pandey and Others vs State of U.P.

Heard learned Counsel for the appellants, learned Counsel for the complainant Sri Deepak Dubey, and the learned A.G.A. and perused the record and judgement of the learned Additional Sessions Judge/FTC I, Kushinagar dated 2.4.09 convicting and concurrently sentencing the appellant/applicants to imprisonment for life and fine of Rs. 5000 u/s 302/149 IPC, and 2 years R.I. under both Sections 147 and 506 IPC.

The prayer for bail in both the connected appeals are being disposed of by means of this common order.

The allegations in the F.I.R. were that on account of election enmity on 21.8.2005 at about 4 p.m., the appellant Ram Dayal Gupta, Ramji Pandey, Gorakh Pandey, Mritunjai Pandey and Digvijai Pandey arrived together at the door of the informant Ramlakhan Chakradhar hurling abuses and raising cries. The appellant Ram Dayal Gupta cried out that Nagendra alias Saroj should be shot and he would bear the expenses. Then co-accused Ramji Pandey, (who has not yet filed his criminal appeal against the impugned judgment) whipped out his country made pistol, whilst the other accused-appellants kept crying out to kill everybody, and they would face the consequences. Then Ramji Pandey fired his country made pistol on Nagendra alias Saroj, the cousin brother of the informant, who succumbed to his injuries on the spot. The F.I.R. was lodged the same day at 5.20 p.m. at P.S. Hata.

It is argued by the learned Counsel for the appellants that this is a case of en masse false implication inasmuch as 5 persons have been made accused in the aftermath of the panchayat elections, even though the deceased has received only a single fire arm injury which is imputed to the co-accused Ramji Pandey.

It was also submitted by the learned Counsel for the appellants that the main enmity in this case, if at all, was between Nasruddin and the appellant Ram Dayal Gupta because Ram Dayal Gupta had earlier been elected the Pradhan. Now as the constituency had been declared a women''s constituency, the present election was being fought between Smt. Basanti the wife of Ram Dayal Gupta and Fatima the wife of Nasruddin, and the prosecution allegation was that Ram Dayal Gupta apprehended that the wife of Nasruddin would be elected. It is argued by the learned Counsel for the appellants that as election enmity was said to be the main motive, the person who should have been targetted for the attack would have been P.W. 4 Nasruddin or his brother P.W.3 Jalaluddin, who are admittedly eyewitnesses of the incident, but significantly they were not attacked, but only the deceased Nagendra alias Saroj was fired upon. It is further argued by the learned Counsel for the appellants that all the four witnesses P.W.1 Ramlakhan Chakradhari, who is the informant, P.W. 2 Motilal, who is his relative, P.W. 3 Jalaluddin, brother of Nasruddin belong to the party of Nasruddin PW 4, the fourth eye witness, and that the appellant Ram Dayal Gupta has been given an explicit role of exhortation only because he was the ex-Pradhan and his wife had contested the election against the wife of Nasruddin. It was submitted that the omnibus allegations of instigation, which are assigned to all the accused except the main shooter Ramji Pandey, are artificial and not very believable. That the witnesses are prejudiced against the appellants and have sought to exaggerate their roles is apparent from the fact that whereas in the FIR and in his evidence, PW 1 Ram Lakhan Chakradhari, informant, has deposed that the appellants (other than co-accused Ramji Pandey) were unarmed, but had only resorted to ''lalkars'' and abuses, but in his cross examination PW 2, Moti Lal has stated that Ram Dayal was armed with a small danda, Gorakh and Mritunjaya were armed with bricks, which they are said to have used in the incident, even though no one has sustained any injuries due to these weapons. PW 3 Jalaluddin the brother of Nasruddin has gone one step further in his cross-examination and set up an entirely new case by assigning a cubit long country made pistol to Ram Dayal, a big country made pistol to appellant Gorakh, and country made pistols to appellants Mrityunjaya and Digvijay. Thus it is contended that the prosecution witnesses are prone to exaggerate the case against the appellants, and it is in this context that the role of exhortation by the appellants has been developed. The case of the appellants is clearly distinguishable from the case of Ramji Pandey, who whipped out his country made pistol and then fired on the deceased. There is a single firearm injury on the deceased and no other injury to the deceased or any other person. The appellants were also on bail during trial and are not said to have abused their bail.

Learned Counsel for the complainant, however, argued that the reason why the appellant Ram Dayal Gupta exhorted Ramji to fire on the deceased Nagendra alias Saroj was because he had supported the candidature of Nasruddin''s wife, and a clear role of exhortation has been assigned to Ram Dayal. He has placed reliance on four decisions of the Apex Court. Masood Ali Khan v. State of U.P. (2009) 2 SCC (Cri) 147 , Khilari Vs. State of U.P. and Others, Anil Ari Vs. State of West Bengal, and Jitendra Singh v. Mange Ram and Anr. 2007 (58) ACC 962.

Masood Ali Khan''s case relied upon by the complainant''s Counsel, it may be noted, was a case where the deceased had a number of injuries, the High Court''s order granting bail to the other accused noted that except the accused who had caused the fatal injury by a ''dav'', the other accused had not caused fatal injuries to the deceased. This order was set aside by the Apex Court on the ground that the other accused persons also shared the common intention in causing injuries to the deceased. In the present case, the appellants are not said to have caused any injury to the deceased. In Khilari Vs. State of U.P. and Others, another case cited by the learned Counsel for the complainant, it was held that the nature of accusations, reasonable apprehension of tampering with the witnesses and prima facie satisfaction of the court in support of the charge are the factors, which need to be considered for granting bail and bail should not be granted without application of mind. There is no quarrel with the legal proposition mentioned in this case, where a cryptic order of the High Court had been set aside. In Anil Ari Vs. State of West Bengal, a 70 year old accused person has been granted bail. The Supreme Court upheld that order, but reiterated the principles mentioned in the above cases about the gravity and nature of the accusations etc., being factors to be taken into consideration where an accused is seeking bail in a case u/s 302 IPC. Also the mere fact that the accused has not misused the liberty of his bail, cannot be a ground for granting bail.

In the fourth case cited by the learned Counsel for the complainant viz. Jitendra Singh v. Mange Ram and Anr. 2007 (58) ACC 962 , the High Court had granted bail merely by observing that the respondent therein had exhorted the other accused to murder the deceased, and the Supreme Court set aside the order. The said case is distinguishable, inasmuch as in the present case we have considered a large number of factors, for considering the application for bail, viz. the omnibus nature of allegations of exhortation against four accused persons, who seemed to have acted in a ''Greek Chorus'' in giving joint ''lalkaras''. In paragarpha 31 in Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, it was observed:

People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking. They are often apt to say "all" even when they only saw "some" because they are too lazy, mentally to differentiate.

The reason for giving the prominent role of exhortation to Ram Dayal may have been his enmity with Nasruddin. It was also surprising that as the main resentment alleged against Ram Dayal was that Nasruddin''s wife was contesting the Pradhani elections against his wife, and the former was expected to win, Nagendra and not Nasruddin was targetted, even though Nasruddin was said to be present at the spot. Only related and interested witnesses who belong to Nasruddin''s party have supported the prosecution allegations of exhortation etc. and we have seen above that there have been improvements in their version from the earlier FIR version which showed them as unarmed and only abusing and giving lalkaras, but subsequently they are shown as armed with with country made pistols by PW 3 Jalaluddin and sticks and brick bats by PW 2 Moti Lal (which they are also alleged to have used despite the presence of only a solitary fire arm injury and absence of any blunt weapon injury on the deceased).

In Jainul Haque Vs. State of Bihar, it has been held that by its very nature the evidence of exhortation is weak, and prosecution witnesses are prone to include additional accused who may not be involved in an incident by describing them as instigators. In Teja Singh Vs. Mukhtiar Singh and others, the Apex Court upheld the acquittal of the appellant Mukhtiar who had exhorted the main accused to shoot, and the other two respondents who had been assigned no role, but maintained the sentence of life imprisonment awarded to the main appellant.

We need to also keep in mind that presently the Central and District jails in U.P. are crowded to the extent of double or more of their sanctioned capacity. As per information received from the I.G. (Prisons), U.P., as on 30.6.09 the combined capacity of the 6 Central Jails for lifers and other convicted prisoners undergoing imprisonment in excess of 7 years was 6893 prisoners, but they are presently housing 13534 convicts. The Naini Central Jail which also doubles as a district jail for Allahabad and Kaushambi, has a capacity for 2060 prisoners, but as a matter fact it is presently housing 4265 prisoners. The result is that Central Jails are now refusing to admit lifers and other long sentence prisoners, and is diverting them to the 53 district jails which are meant for under trials and convicts who are awarded less than 7 years sentence. But the district jails are also already overcrowded. The total capacity of central and district jails is 42540, but they are presently housing 82230 prisoners, which is almost double the planned capacity.

We cannot see the cases of these convicts in jail being decided at any early date in the forseeable future as the Allahabad High Court is functioning with only half its strength at 84, whereas it has a sanctioned strength of 160 Judges, even though as on 4.8.09 there were 7,02,519 cases of all nature, pending in the Allahabad High Court.

The position of pendency of criminal appeals is also very disturbing. According to the High Court''s Master Computer 84432 criminal appeals (including 23780 division bench and 60652 single judge appeals) and 11666 government appeals (9749 division bench and 1917 single judge) were pending on 4.8.09. There are a few criminal appeals which are pending since 1978, and from 1982 onwards the single judge and division bench appeals that are pending have been running into four figures. The final disposal of appeals per year is however very low. Division benches are also tied up in fresh and final hearing matters in criminal writs, whose pendency is 18584 and on an average about 133 division bench criminal writs are filed daily, mainly seeking stays of arrests because of the inapplicability of Section 438 Cr.P.C and absence of provision for anticipatory bail in the state of U.P. Likelihood of denial of bails by subordinate courts even in petty matrimonial disputes, or where disputes are essentially civil in nature and other minor matters where on occasion respectable persons has been falsely implicated, causes a rush before benches hearing applications u/s 482 Cr.P.C. or Criminal Revisions after filing of charge sheets. Consequently 63,323 applications u/s 482 CrP.C and 35473 Criminal revisions were also pending as on 4.8.09. On an average about 200 applications u/s 482 Cr.P.C. and about 25 Criminal Revisions are filed in the High Court daily.

Although we are conscious of the fact that for maintaining the confidence of the public in the judicial system and for preventing citizens from engaging in private vendetta or taking recourse to extra legal means and seeking the aid of the Mafia it is important that in cases where grave accusations of murder or u/s 396 IPC etc. are made, bails should not be granted lightly. But at the same time we cannot lose sight of the fact that in view of the chronic overcrowding in the jails law and order problems, conflicts and suicides and problems of maladministration of jails are being increasingly reported. The Apex Court in Rama Murthy Vs. State of Karnataka, has spoken on how jail overcrowding adversely affects health and hygiene conditions of prisoners, and how it results in mixing of hardened criminals involved in serious offences with prisoners involved in minor offences, casting a negative influence on the latter. Such problems compel us to think of the need for striking a balance when considering bail prayers in pending appeals, and for making a distinction between the main accused who are assigned overt roles of assaulting the deceased and the other accused who are given subsidiary roles of being merely present at the spot, or of exhorting the other accused, or catching hold of the victim, against whom the evidence may be weaker in character and lacking the medical corroboration which is available against the accused who have been assigned the main overt roles.

In view of the aforesaid discussion, without expressing any final opinion on the merits of the case, let the appellants Gorakh Pandey, Mirtunjai Pandey, Digvijai Pandey and Ram Dayal Gupta convicted and sentenced by Additional Sessions Judge, Fast Track Court No. 1, Kushi Nagar in S.T. No. 253 of 2006, be released on bail on their furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned.