VIKRAM NATH,J - (1.) BY means of this application the applicant has sought bail in Case Crime No. 1526/2009, under Section 307 IPC, P.S. Sihani Gate, District Meerut.
(2.) ACCORDING to the contents of the FIR, on 16.9.2009 the complainant Rishikant Goel alongwith his father Mahendra Kumar Goel (injured) was returning from his office when a motorcycle coming from behind, on which there were two passengers came to the side of their car and three consecutive shots were fired by them causing injuries to Mahendra Kumar Goel and thereafter the said motorcycle borne miscreants fled away. It further mentions that the incident is of 8.45 p.m. in the evening. It further mentions that Kishan Sharma and Rajesh Sharma @ Guddu Pandit, r/o Chandani Chawk bore enmity with the complainant side that they had earlier physically assaulted the complainant's father in 1998 and had threatened him to hand over the property purchased by him to the said persons or else they would eliminate him. It further mentions that thereafter also they had intimidated the complainant's side on a number of occasions; that about 15/ 20 days earlier they had entered into the office of the complainant and had threatened the father of the complainant of being eliminated and it is a result of all this that they have attacked and shot his father in which he has been injured. The injury report confirms the gun-shot injury in the chest and abdomen damaging the right Subclavial Artery. The injured was initially given first-aid at Yashoda Hospital and was thereafter shifted to Indraprastha Apollo Hospitals, Delhi where he was admitted as a surgery case and taken for surgery. The transclavicular right axillary artery was repaired and the bullet was retrieved. He was shifted to ICU and upon gradual improvement he was mobilized and thereafter shifted to the ward and was discharged on 25.9.2009. The complainant and the injured in their statements under Section 161 Cr.P.C. have fully corroborated the FIR version. This bail application has been filed by Kishan Sharma, one of the two co-accused. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri H.C. Mishra, learned counsel appearing for the applicant, Sri Satish Trivedi, learned Senior Advocate assisted by Sri Nitin Gupta and Sri Kuldeep Saxena, learned counsels for the complainant and the learned AGA.
(3.) SRI V.P. Srivastava, learned Advocate has advanced two arguments in order to dislodge the first information report, consequently entitling the applicant for bail. The first argument is that the first information report as recorded seems to be improving sentence by sentence. According to him on account of enmity as admitted in the FIR the applicant has been falsely implicated. The FIR is tutored. In the opening part of the FIR, which he refers to as the first part, the assailants have not been named; what has been mentioned is that two motorcycle home assailants came from behind and opened fire at the father of the complainant but it does not disclose the names. The second part describes about the enmity between the accused and the complainant side and the third and the last part nominates the accused of having committed the crime. This according to Sri Srivastava is an improvement and the fact is that the complainant was not able to recognize the assailants. The applicant and co-accused have been falsely implicated on account of enmity. The second argument advanced by Sri Srivastava, learned Senior counsel is based on the plea of alibi. According to him the applicant Kishan Sharma was admitted to Jail No.7, Tihar, New Delhi on 14.9.2009 in a case under Sections 107/151 Cr.P.C. Said Kishan Sharma was released from jail on 16.9.2009 at 8.06 p.m., which is the date of the incident. In support of his submission he has referred to a reply of the Superintendent, Central Jail No.7, Tihar, New Delhi dated 9.11.2009 in response to the application filed by Sri Kishan Chand (referred to as Kishan Sharma in the FIR) seeking details about his incarceration in the jail, which has been filed as Annexure 5 to the affidavit filed in support of the bail application. Further he has referred to the jail warrant issued by the Central Executive Magistrate, Delhi filed as part of Annexure RA1 with the rejoinder affidavit. According to this jail warrant the applicant was produced before the Magistrate on 14.9.2009 but as he failed to produce any surety, he was remanded to judicial custody to be produced before the Magistrate again on 16.9.2009. Further there is an endorsement dated 16.9.2009 of the Special Judicial Magistrate that personal bonds are accepted and the applicant be released if not required in any other case. Based upon these two documents the arguments is that the applicant having been released from the jail on 16.9.2009 at 8.06 p.m. could not have committed the crime on the same day of his release at 8.45 p.m., as the distance of the place of incident from Tihar Jail was about 44 km and within a span of 39 minutes it was an impossibility to reach at the place of crime with heavy traffic congestion in the evening. He has thus tried to establish that it was an impossibility that the applicant could be present at the time and place of the crime.;