Bail application rejected in attempt murder case involving firearms. Court held statement of injured could not be recorded due to critical condition, but mother's statement and recovery of weapon established prima facie case against applicant.
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Court No. - 84
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1255 of 2023
Applicant :- Ganesh Chaubey @ Ganesh Pandit Opposite Party :- State of U.P. Counsel for Applicant :- Piyush Sinha,Vinit Kumar Sharma Counsel for Opposite Party :- G.A.,Ashok Kumar Upadhyay,Udai Prakash Deo Pandey
Hon'ble Sameer Jain,J.
Pursuant to the order dated 01.02.2023 passed by this Court Inspector, Vineet Mohan Pathak, the Investigating Officer, is present in person in the Court.
He apprised the Court that as injured was not in a position to speak, therefore, his statement could not be recorded. He placed photocopy of Parcha No. 20 of the case diary dated 02.01.2023. From the perusal of the Parcha no. 20 of the case diary dated 02.01.2023 it appears that the injured Shivanshu Pal was not in a position to speak.
The explanation provided by the Investigating Officer, Vineet Mohan Pathak is sufficient.
Heard Sri Piyush Sinha, learned counsel for the applicant, Sri Udai Prakash Deo Pandey, learned counsel for the informant and Sri Suresh Bahadur Singh, learned AGA for the State.
The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 294 of 2022, under Sections 147, 148, 149, 307/34 IPC, Police Station Kerakat, District Jaunpur during pendency of the trial.
According to the FIR, applicant along with co-accused Gulab Pal caused firearm injury to the brother of the informant.
Learned counsel for the applicant submitted that from the perusal of the FIR it appears that informant is not an eye witness and some dispute was pending between informant side and co-accused Gulab Pal and applicant is one of the associate of the Gulab Pal, therefore, applicant was also nominated in the FIR along with co-accused Gulab Pal and in fact he did not participate in the alleged crime. He further submits that during investigation statement of injured could not be recorded due to his serious condition although statement of other witnesses were recorded but none of the witness were eye witness of the
incident. He further submits that although mother of the injured stated that she arrived at spot after hearing the sound of fire and she witnessed that applicant and four others were running from the spot and three persons were having country made pistol in their hands, therefore, she is also not eye witness. He further submits that from the perusal of the injury report it appears that injured sustained one firearm injury on his head and it is not on record that who was the author of this injury and as statement of the injured could not be recorded, therefore, till date this fact could not be revealed.
He further submits that applicant is not having any previous criminal history although when he was arrested in the present matter then on the basis of recovery of country made pistol applicant was implicated in a case relates to Section 25 Arms Act. He further submits that the recovery of country made pistol from the possession of applicant is totally false and planted one and till date the alleged weapon recovered from the possession of applicant could not be connected with the instant crime. He further submits that applicant in the present matter is in jail since 24.08.2022, therefore, applicant may be released on bail.
Per contra, learned AGA and learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicant along with other co-accused persons participated in the present crime and committed instant offence and due to the fire opened by them injured sustained injury on his head and the condition of the injured is still serious and he is not in position to speak, therefore, his statement under Section 161 Cr.P.C. could not be recorded and investigation is still pending.
Learned counsel for the informant further submits that from the statement of mother of the injured it is apparent that applicant was present at spot along with other co-accused persons and out of five persons, three persons were having country made pistol and all participated in the alleged crime and their intention to commit murder of the injured was evident and in spite of the fact that if injured sustained single injury then applicant cannot be benefited. He further submits that as investigation is still pending and in future statement of the victim can be recorded and even he can state before the trial court, therefore, at this stage it cannot be said that there is no evidence against the applicant.
Learned counsel for the informant further submits that from the possession of applicant one country made pistol was also recovered and at the time of arrest they also opened fire upon the police party and this fact shows that applicant and other coaccused persons are criminals. He further submits that applicant
in his statement after arrest stated that if on the spot mother of the injured would not arrive then injured will definitely be finished and this fact shows that applicant was also involved in the present crime, therefore, he is not entitled to be released on bail.
I have heard learned counsel for the parties and perused the record of the case.
From the perusal of record, it appears that applicant and coaccused Gulab Pal was nominated in the FIR and it is stated that they opened fire and due to the fire opened by them brother of the informant sustained injuries. Although, from the perusal of the case diary dated 02.01.2023, which was produced by the learned AGA today in the Court, it appears that statement of injured could not be recorded till date during investigation as his condition was not such and he was not in a position to speak but there is statement of the mother of the injured which shows that after hearing the sound of fire she arrived at the place of incident and found that applicant and four others were running from the spot and three persons were having country made pistol in their hands.
From the perusal of the medical report of the injured, it appears that injured sustained firearm injury on his head and his condition is still critical and he is still confined to bed, therefore, considering the allegation made against the applicant in the FIR and in the statement of the mother of injured and considering the fact that injured sustained firearm injury on his head due to which his condition is still critical, in my view, applicant is not entitled to be released on bail.
Accordingly, the instant bail application is rejected.
Order Date :- 6.2.2023 AK Pandey
Digitally signed by :- ANUPAM KUMAR PANDEY High Court of Judicature at Allahabad
3 issues framed by the court
Whether the applicant is entitled to bail given the serious condition of the injured and pending investigation.
Whether the recovery of a country-made pistol and alleged conspiracy warrants rejection of bail.
Whether the applicant's statement implicating him in a planned killing during arrest justifies denouncing bail.
3 provisions across 3 enactments
Ganesh Chaubey @ Ganesh Pandit
State of U.P.
Sameer Jain
Anupam Kumar Pandey
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
