Ashok Kumar Vs. State
of U.P.& ANR. [2009] INSC 199 (3 February 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of SLP (CRL) NO. 7425 of 2007) Ashok Kumar ...Appellant Versus State of
U.P. and Anr. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the order passed by a learned Single Judge of the
Allahabad High Court granting the prayer for bail made by respondent No.2-Kamal
Singh. The present appeal has been filed by the complainant.
3.
Background
facts in a nutshell are as follows:
Respondent No.2
faced trial in Crime No.96 of 2006 for alleged commission of offence punishable
under Sections 147, 148, 149, 323, 307, 302, 504 read with Sections 34 and 120B
of the Indian Penal Code, 1860 (in short the `IPC'). Earlier the bail
application filed was rejected by the High Court on 16.11.2006. In support of
the second bail application it was submitted that pellets were found on the
body of the deceased by the doctor and such pellets and the licensed rifle were
sent to the ballistic expert. From the report received it is revealed that such
pellets could not have been used by the licensed rifle of the accused. The
ballistic report completely falsified the prosecution case. The High Court
accepted the prayer for bail observing as follows:
"It is admitted
case on behalf of prosecution that the applicant committed murder of deceased
by causing injuries with the licensed 315 bore factory made rifle.
The police report
also reveals that three pieces of pellets were found by the doctor in the body
of deceased Monu.
These pellets and
licensed rifle of the applicant were sent to Vidhi Vigyan Prayogshala Agra from
where the report was received which is on record which reveals that pellets
could not be used in licensed rifle of 315 bore factory made. Such pellets are
used in 12 bore weapon.
Soft Nose Jacketed
Bullets are used in standard cartridges of 315 bore factory rifle. Therefore,
this is the fresh and good ground to allow the bail application of present
applicant.
After considering the
report of ballistic expert, the bail application of present applicant is hereby
allowed."
4.
Learned
counsel for the appellant submitted that the approach of the High Court is
clearly erroneous. It is pointed out that the following factors which were
highlighted by the prosecuting agency when the bail application was being heard
have been completely lost sight of :
"It is admitted
that the death of Monu occurred because of gunshot fired from rifle by accused
Kamal Singh and the doctor recovered three pieces of metal from the body of
Monu. The rifle and the pieces were sent to the Legal Science Laboratory, Agra
for matching with the rifle.
The examination
report of the said rifle and the pieces of metal dated 2.3.2007 issued by the
firearms, Legal Science Laboratory, Agra has been sent to C.J.M Gautam Budh
Nagar in which it is stated that the disputed 3 nos. mutilated pellets weight
is equivalent to standard A.A. pellets. These kinds of pellets are used in the
cartridges of soft jacket firearm example 12 bore. The disputed rifle is 315
bore factory made rifle and the standard cartridges of 315 bore uses soft nose
jacket bullet.
The examination
report of the firearm is found to be dubious as follows:
1. As per the medical
report of Monu, there was only one entry wound of bullet on his body whereas in
firearm report there are three pellets which are equivalent to three pellets of
original 12 bore.
2. As per medical
report, the entry of bullet was small and the exit was 3-4 times bigger. This
kind of injury occurs only due to weapons, which use soft nose jacket bullet
i.e. 315 bore rifle.
3. During the
operation of Monu at Safdarjung Hospital, Delhi the doctors found three pieces
of metal from the body of Monu.
4. The firearm report
is also doubtful on the basis as to how three bullets entered from one hole. As
per medical report during exit of bullet, the stomach of the deceased was
busted and still three pellets stayed inside also."
5. Learned counsel
for the State supported the appellant's stand.
6. Learned counsel
for respondent No.2 on the other hand submitted that the ballistic report
completely falsified the prosecution version and therefore considering the
relevant factors, the prayer for bail has been accepted.
7. As rightly
contended by learned counsel for the appellant, the High Court appears to have
arrived at a definite conclusion about non possibility of the injuries having
been sustained in the manner indicated by the prosecution. While considering
the bail application such a finding should not have been recorded. Apart from
that, the specific stand of the prosecuting agency as quoted above does not
appear to have been noticed by the High Court. It has also been submitted by
learned counsel for the appellant that the complainant and independent eye
witnesses are being subjected to threats by respondent No.2 and his supporters
and there is hardly any progress in the case which is being tried by the
Additional Sessions Judge, Fast Track Court-4, Gautam Budh Nagar. From the
order sheet it is revealed that adjournments have been liberally granted on the
application filed by the accused. Trial is to be conducted on continuous basis
in view of what has been provided in Section 209 of the Code of Criminal Procedure,
1973 (in short the `Code').
8. Since the accused
is on bail for considerable length of time, we do not think it appropriate to
cancel the bail, though there appears to be some substance in the plea that the
impugned order granting bail suffers from various infirmities. Let the trial be
completed within three months. If the complainant or any witness seeks
protection for appearance before the Court during trial, the same shall be
provided by the concerned police officials.
The trial Court would
take up the matter on continuous basis to complete the trial within the period
indicated above.
9. The appeal is
disposed of accordingly.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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