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Court No. 42
Criminal Misc. Bail Application No. 287191 of 2009
Criminal appeal no.6243 of 2003
Kushal Singh Vs. State of U.P.
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Hon'ble Rakesh Tiwari, J.
Hon’ble Rajesh Chandra, J.
Heard learned counsel for the parties and perused the record.
Criminal Misc. Bail Application No. 287191 of 2009 on behalf of
Kushal Singh (appellant) is listed today for consideration of bail. It is
for the first time that bail application on behalf of Kushal Singh is
being considered as at the time of admission of the aforesaid appeal
the record in S.T. No. 326 of 2002 (State Vs. Kushal Singh and
another) was summoned and consideration of bail was postponed.
The contention of learned counsel for the appellant is that
Kushal Singh (appellant) is confined in jail since 15.7.2002 and has
served out more than seven years in jail. Hence it can be said that he
served out ten years sentence including the remission period. It is
further stated that there is fair chance of acquittal of the appellant in
criminal appeal also for the following reasons that:
(1) there is no motive for the appellant to kill the deceased
Bhisham Singh as alleged by the prosecution and the time, place and
manner of alleged incident are highly doubtful;
(2) injured witness Rajendra Singh has turned hostile and has
not supported the prosecution version. He clearly stated that on
12.7.2002 at about 7.30 p.m. that some one fired at him and the
deceased Bhisham Singh received firearm injuries and died, but he
could not see the assailant (s) s who had fired;
(3) no independent witness has come forward to support the
prosecution version except the relatives of the deceased who are
interested witness though the incident is said to have taken place in
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the village in front of the house of Munna Singh ;
(4) according to the prosecution, the co-accused Sobaran
Singh is owner of licensed DBBL gun which is said to have
been fired by applicant Kushal Singh on exhortation of Sobaran
Singh which creates doubt on the prosecution story for if
Sobaran Singh wanted to kill the deceased why he had not fired
his gun on the deceased instead of exhorting his brother
Kushal Singh to kill Sobaran Singh;
(5) there is material contradiction in the statements of
P.W. 1, P.W. 2 ( injured witness) and P.W. 3 as such there is
high probability of acquittal of the appellant;
(6) the alleged recovery of gun and one empty cartridge
from the place of occurrence instead of four as four shots are
said to have been fired shows that the applicant was falsely
implicated on a fabricated and planted evidence of recovery;
(7) the recovery memo does not bear signature of any
public witness and relevant parcha of case diary was also not
sent timely to the Circle Officer which supports the contention
that the applicant has been falsely implicated.
It is lastly contended by the learned counsel for the
appellant that all the firearm wounds are found at the chest
portion of the deceased which might have caused by pellets of
single shot of the gun as only one cartridge was recovered from
the place of occurence. This shows that the deceased might
have been killed by some unknown persons.
Apart from above, it is also stated that the applicant is
suffering from serious ailment inside Central Jail, Naini,
Allahabad but doctors of jail and other jail authorities are not
taking steps for his proper medical treatment in spite of
repeated requests.
Learned A.G.A. has submitted that since eye witnesses
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have given account of incident hence motive fails into
significance. He also submits that it is apparent from the record
that the witnesses had seen the accused firing upon the
deceased and as such the time and manner of alleged incident
cannot be said to be doubtful. As regards P.W. 2 injured
witness who has turned hostile it is stated that he is also related
to the deceased as well as the assailants and even if his
statement is ignored.
He submitted that normally in incidents of murders where
the accused and the deceased are stated to each other
independent witness do not come forward, the case of the
prosecution cannot be thrown away merely on the ground that
the witnesses are relatives of the deceased and are said to be
interested witnesses. In such circumstances, testimony and the
statement made by the witnesses are to be closely scrutineers
by the Court.
As regards question of material consideration of
statements of P.W. 1, 2 and 3 are concerned, the learned
A.G.A. submits that there is no material contradiction in the
statements. P.W. 1 and 3 have corroborated the incident by
their statements. As regards injured witness P.W. 2 is
concerned, he has stated that he could not see the assailant
and was declared a hostile witness. It is stated that emphasis
given by learned counsel for the appellant that recovery of gun
and empty cartridges is not made in accordance with law is to
be be seen in the light of the evidence produced in the case
and that the Apex Court has held that another slackness or
irregularity of investigation will not help the accused persons if
their offence is proved on the basis of other material evidence.
It is lastly stated that the court below has come to the
conclusion on the basis of the record and the evidence
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produced that the case against the appellant in S.T. No. 326 of
2002 (State Vs. Kushal Singh and another) under section
302/307 IPC of P.S. Mataundh, District Banda, is proved.
After hearing learned counsel for the parties, we are of
the considered view that four shots were fired upon the
deceased by the appellant and is also corroborated by medical
evidence which clearly shows that there were four entry
wounds in the body of the deceased. P.W. 2 who is injured
witness received injury only on chin which could be caused by a
stag pellet of the gun as clarified by the doctor in his evidence.
All the accused are named in the FIR which was lodged within
a period of two hours of the incident. A little variation in time
does not effect the prosecution story or falsify the incident
which had actually taken place and witnessed by eye-
witnesses. The incident having been actually seen by the
ocular witness pales the motive insignificance. The occurrence
is well established by P.W. 1 and P.W. 3 who could not be
shaken in their cross-examination. The law is well settled that
when interested witnesses are alleged to have given statement,
their statements should be scrutinized by the Court. Even if the
statement of the injured witness P.W. 2 Rajendra Singh is seen,
he does not deny the incident and only states that he could not
see who had killed his brother. A perusal of statement of Bharat
Singh clearly establishes the fact of murder by the appellant as
noted in the judgment thus:-
“dq’ky flag ds ikl nksukyh cUnwd Fkh vkSj lkscju flag [kkyh
gkFk FkkA tSls gh og vius ?kj dh rjQ c<+k] xksyh pyus dh vkokt gqbZA
pwafd mlus vfHk;qDrx.k dks mRrj rjQ tkrs gq, ns[kk Fkk vkSj dq'ky flag
ds gkFk esa cUnwd Fkh] blfy, mls lansg gqvk] D;ksafd Hkh"e flag ls igys ls
vfHk;qDrx.k dh jaft'k py jgh FkhA og nkSM+ dj eqUuk flag ds edku ds
lkeus igqWapk] tgkWa ij Hkh"e flag o jktsUnz flag dks igys cSBs gq, ckrsa
djrs ns[kk FkkA mlus ns[kk fd jktsUnz flag pksV [kkdj vius ?kj dh rjQ
5Hkkx jgk Fkk vkSj Hkh”e flag pcwrjs ds uhps fxj dj NViVk jgk FkkA xksyh
dh vkokt lqudj mlds firk o HkkbZ ogkWa rqjUr igqWap x;sA mu yksxksa us
ns[kk fd lkscju flag yydkj dj dg jgk Fkk fd Hkkh”e flag dks tku ls
ekj nks vkt cpus u ik;sA bl ij dq’ky flag us fQj nks Qk;j fd;k
vkSj og ?kVuk LFky ij fxjk vkSj mldh e`R;q gks x;hA”
Any irregularity in investigation in recovery of the gun
and cartridge or preparation of the memo etc. would not give
any benefit to the accused who had fired at least two shots
in the presence of the witnesses upon Bhisham Singh, when
these witnesses had come running on hearing fire shorts
earlier immediately before the murder of Bhisham Singh by
the appellant.
In the circumstances, and for the reasons stated above,
we do not consider it to be a fit case for grant of bail. The
prayer for bail is, accordingly, rejected.
As far as prayer for proper treatment of the appellant is
concerned, the jail authorities are directed to take proper steps
for proper treatment of the appellant who is in jail.
Since lower court record has been received, the office is
directed to prepare paper-book of this case within a period of
four weeks for final hearing. List immediately, thereafter.
Dated: 13.01. 2010
RCT/-
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