Kaushal Kumar Saxena vs State of U.P.

Vinod Prasad, J.—Applicant Kaushal Kumar Saxena has filed the present bail application u/s 439, Cr. P.C. in Crime No. 22 of 2006, u/s 302, I.P.C. and 25/27 of Arms Act, P.S. Chandausi, district Moradabad.

The prosecution allegations against the applicant as are culled out from the F.I.R. (Annexure-1) are that the informant Anokhey Lal Gupta resident of Sita Road, P.S. Chandausi, district Moradabad, had a son Alok Kumar Gupta alias Banty aged about 20 years. There was some bickering between Alok Kumar Gupta alias Banty and the present applicant as a result of which on 16.2.2006, a tiradic altercation between the two had taken place. Sumit Sharma and Anil Sharma two friends of Alok Kumar Gupta asked him to settle the score with the present applicant Kaushal Kumar Saxena. Hankered with the idea of settling the score the deceased, his aforesaid two friends alongwith Sanjeev Kumar and Brij Pal Maurya came to the house of applicant at Mohalla Kayasthan and there an altercation took place between them. The applicant during the verbal dual lost his tamper and fired a shot at Alok Kumar alias Banty and made his escaped good. Injured Alok Kumar when was being transported to district Hospital Chandausi lost his breath in the way. This incident occurred on 17.1.2006 at 5.30 p.m. The informant Anokhey Lal Gupta, the father of the deceased, after covering a distance of 2 km. from the place of occurrence, lodged the F.I.R. at P.S. Chandausi, district Moradabad on the same day at 6.45 p.m. The autopsy of the deceased (Annexure-2) took place on 18.1.2006, which indicates that the deceased had received a single gun shot injury with blackening, charring and a big bullet was recovered from his brain cavity. The cause of the death of the deceased was gun shot injury. On the said factual matrix the applicant approached for bail to this Court after his bail application was rejected by the Sessions Judge, Moradabad, on 22.4.2006 (Annexure-3).

I have heard Sri G. S. Chaturvedi, learned senior counsel assisted by Smt. Raj Laxmi Sinha advocate learned Counsel for the applicant, Sri Rajesh Kumar Srivastava, learned Counsel for the informant and the learned A.G.A. in opposition.

Sri G. S. Chaturvedi, learned senior counsel canvassed only two submissions ; firstly, that it is the case of the prosecution itself that the incident occurred when the deceased has gone to the house of the applicant in the company of his friends to settle the score and their altercation took place at the door of the applicant and the applicant lost his control and fired a shot, therefore, the offence committed by the applicant will not travel beyond offence u/s 304, I.P.C. The next submission canvassed by the learned senior counsel was that the informant Anokhey Lal Gupta was examined by the Investigating Officer wherein he has stated that at the time of the incident there was fog and darkness on the spot and therefore he could not recognize the assailant and later on he came to know that another person Pradeep alias Golu had shot the deceased.

Sri Rajesh Kumar Srivastava, learned Counsel for the informant and learned A.G.A. on the other hand submitted that the aforesaid statement referred to by the learned senior counsel of the applicant is his alleged subsequent statement, which according to the informant was never given to the second Investigating Officer as he had never interrogated him. The learned Counsel for the informant has filed an affidavit before the Court today wherein he has testified that he had never given such a statement, as the second Investigating Officer Onkar Singh never interrogated him. They further argued that in this case the applicant is the main shooter and the incident had taken place infront of his house and therefore, the applicant does not deserve bail.

I have considered the contentions raised by both sides.

In view of the above, I do not consider it a fit case for bail at this stage.

The bail application is rejected at this stage.

The trial court is directed to conclude the trial of the applicant within four months from the date of the production of certified copy of this order before it.