Kunwar Singh alias Virendra Pratap Singh vs State of U.P.

A. Mateen, J.—This is second bail application in pending appeal moved on behalf of appellant/applicant Kunwar Singh alias Virendra Pratap Singh. The prayer for bail of the appellant/applicant was rejected on 02.04.2008.

Heard Sri Subodh K. Shukla, learned Counsel for the appellant/applicant, Sri Rishad Murtaza, learned Counsel appearing for the complainant and learned Counsel for the State.

We have gone through the judgment of the learned trial Court as well as the lower court record.

Appellant/applicant has been convicted by the Additional District Judge/Fast Track Court No. 3, Rae Bareli in Sessions Trial No. 617 of 1998 u/s 302/34 IPC for the maximum term of life imprisonment and u/s 307/34 IPC for a term of five years R.I. Under both the counts, the appellant/applicant was further sentenced to fine.

The incident of the present case is said to have been committed at 4.30 pm in a dramatic manner. The prosecution case is that the accused persons, the deceased and the injured were traveling on two four wheelers (Jeeps). Both the four wheelers were running side by side. The further prosecution case is that appellant/applicant (Kunwar Singh alias Virendra Pratap Singh) fired upon Nagesh Kumar Misra due to which Nagesh Kumar Misra received single injury on the right side of his skull. The firearm injury proved to be fatal and Nagesh Kumar Misra succumbed to the injury on the driver seat itself while the four wheeler he was driving ran into a field. The other occupants of the four wheeler made a futile attempt to flee away from the spot. The accused persons again fired upon them due to which three persons received firearm injuries.

Two of the three injured persons, i. e. PW.1 Akhilesh Kumar Misra and PW. 2 Krishna Kumar Misra were produced as prosecution witnesses during trial. We have been taken extensively through the statements of these witnesses including other prosecution witnesses.

PW. 2 Krishna Kumar Misra in his deposition specifically stated that firing was done upon them for about 5 - 6 minutes. Surprisingly, this injured witness has received lacerated wounds and abrasions. Similarly, PW. 1 Akhilesh Kumar Misra had also received lacerated wounds and abrasions. Submission of learned Counsel for the appellant/applicant is that if the assertion of PW. 2 Krishna Kumar Misra is accepted as true, in such a circumstance, the injured persons should have received gun shot injuries and not lacerated wounds and abrasions . He vehemently submitted that this puts a dent on the prosecution story. However, learned Counsel for the complainant, rebutting this submission of learned Counsel for the appellant/applicant submitted that PW. 2 Krishna Kumar Misra had received pellet injury.

Learned Counsel for the appellant/applicant also argued that the injury caused upon the person of the deceased was not caused as stated by the prosecution for the reason that under the injury, nine metallic shots including wads were found. In other words, the argument advanced by learned Counsel for the appellant/applicant is that if it would have been a case as set-up by the prosecution and firing was done from 3 - 4 feet away, there would be no question of recovery of wads from the firearm injury suffered by the deceased. Sri Rishad Murtaza, learned Counsel for the complainant refuted this argument of the learned Counsel for the appellant/applicant and stated that since fire was made on the moving four wheelers, as such, due to thrush and pressure of wind, pellets and wads entered into the firearm wound. He further stated that for the same reason, blackening and charring could not be caused.

In our opinion, the argument of learned Counsel for the complainant that since the four wheeler was not in a static state but was moving at a considerable speed, as such, blackening and charring could not be caused for the reason that the gas or smoke would have dissipated due to air-pressure. This argument of learned Counsel for the complainant is quite improbable but if taken to be true, then the wads found underneath the wound would also have been driven away due to wind-pressure and could not have embedded in the wound. This certainly puts a dent on the prosecution story as it emerges out for the reason that if blackening could not have been caused due to wind-pressure, the wads, being feather-light when compared with the metallic pellets, could also not enter the firearm wound.

Apart from the injuries caused to the said two prosecution witnesses, it has been emphasized that the presence of the testimonies of injured witnesses, will over ride the medical evidence; it being corroborative piece of evidence.

We have gone through the testimonies of the aforesaid two Prosecution Witnesses and at this juncture we find their testimonies to be shaky and does not fill in within the parameters of offence allegedly committed by the appellant/applicant or the the manner in which it is alleged by the prosecution to have been committed.

Learned Counsel for the appellant/applicant further submitted that three co-accused, i.e. Shanker Singh, Lalla Singh and Iqbal Bahadur Singh have already been released on bail; the appellant/applicant was on bail during the trial and he did not misuse the liberty of bail granted to him; and there is no possibility of the appeal coming for hearing within measurable distance of time. On the other hand, learned Counsel for the complainant submitted that appellant/applicant is a hardened criminal and against him several criminal cases are pending, and, as such, he is not entitled for bail.

Having considered the rival arguments of the learned Counsel for the parties, we are of the opinion that the appellant/applicant deserves to be enlarged on bail. But at the same time, it would be appropriate to impose conditions upon the appellant/applicant.

Let appellant/applicant Kunwar Singh alias Virendra Pratap Singh, convict of Sessions Trial No. 617 of 1998 be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of learned Chief Judicial Magistrate, Rae Bareli with the condition that the appellant/applicant shall give regular attendance after every fifteen days in the Court of Chief Judicial Magistrate, Rae Bareli. The Chief Judicial Magistrate shall maintain a skeleton file regarding appearance of the appellant/applicant as mentioned above. It is further clarified that if the appellant/applicant fails to comply with the above condition and does not give attendance in the Court of Chief Judicial Magistrate, Rae Bareli for any reason whatsoever, it will be open for the complainant to move application for cancellation of bail of the appellant/applicant before this Court.

Learned Chief Judicial Magistrate. Rae Bareli shall send photo stat copies of the bonds furnished by the appellant/applicant to be preserved on the record of this appeal.