Court No. - 47 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13570 of 2010 Petitioner :- Shri Suresh Chaubey Respondent :- State Of U.P. Petitioner Counsel :- K.M.Tripathi,Shravan Kumar Mishra Respondent Counsel :- Govt Advocate,Pradeep Chauhan,S.K.Singh Hon'ble B.N. Shukla,J.
Heard Sri K.M. Tripathi and Sri Shravan Kumar Mishra, learned counsel for
the applicant, Sri Pradeep Chauhan and Sri S.K. Singh, learned counsel for
the complainant, learned A.G.A. for the State and perused the record.
Learned counsel for the applicant has contended that the applicant was
suffering from severe infection of Hepititus B and his condition is still critical
and the 2 independent witnesses Ashutosh Tripathi and Ram Bahadur in their
affidavits have stated that the deceased was assaulted by unknown assailants
who had concealed their faces. It is further contended that the FIR has been
received in the court C.J.M. after about 4 days and Section 157 Cr.P.C. has
not been complied with and in the inquest report there is no mention of
weapon, crime number and other particulars required. It is further contended
that in the Forensic Science Laboratory report it has come that the fire was not
shot from the recovered fire arm and the witnesses are family members of the
deceased. It is further contended that there is no explanation of delay about
4.30 hours in lodging the FIR and complainant Dharmendra himself was
Pancha witness in the inquest proceeding and he remained there since 6.05
p.m. to 7.05 p.m. and it was not possible for him to lodge the FIR at 6.30 p.m.
because the distance of police station Belipar is about 15 km. from the District
Hospital, Gorakhpur, that the witnesses could not see the occurrence because
at the time of incident the deceased and another persons were standing in the
disputed land which is situated in Mauza Jotepatia but neither the blood
strained earth nor simple earth was seized by the I.O. from Mauza Jotepatia
and it was collected from Mauza Jote Bhagda Rani, that the distance of
Mauza Jotepatia and Mauza Jote Bhagda Rani is about 1/2 km. and the
presence of the eye witnesses from the spot is doubtful and the recovery of the
fire arm has been fabricated by the police. The applicant is in jail since
25.4.2009.
Learned counsel for the complainant as well as learned A.G.A. have
contended that specific allegation has been made against the applicant that he
fired shot and committed murder of the deceased and the FIR is prompt and
this is a broad day light murder. It is further contended that entire fact
evidence has been adduced in the trial court and only statement of doctor and
I.O. is to be recorded.
In FIR there is specific allegation against the applicant. The trial is pending in
the trial court. Most of the fact witnesses have been examined as has been
informed by the prosecution. The arguments advanced from side of the
applicant is based on factual and legal aspect and any discussion on this point
at this stage when the trial is going on would certainly prejudice the case.
Considering the facts and circumstances of the case but without expressing
any opinion on the merits of the case, I am not inclined to release the
applicant on bail.
Consequently, the prayer for bail of the applicant Suresh Chaubey is hereby
rejected at this stage.
However, the trial court is directed to proceed with the trial in Crime No. 264
of 2009, under section 302, 323, 324, 325, 506/34 IPC and 25/27 Arms Act,
P.S. Belipar, District Gorakhpur expeditiously and conclude the same within 4
months from the date of the presentation of the certified copy of this order
provided the applicant cooperates with the trial.
Order Date :- 11.8.2010
Masarrat