- (1.) N. L. Ganguly, J. This Is 2nd Bail application by the applicant Amod Kumar Sharma in Case Crime No. 160 of 1994 under Section 34, I. P. C. and also Case Crime No. 159 of 1994 under Section 30 of Arms Act, P. S. Nagphani Distt. Moradabad. I had rejected the let bail application of the applicant on 24-6-94.
(2.) ACCORDING to the F. I. R. , the incident took place at about 12-15 in between the nights of 13th and 14th May, 1994. The F. I. R. was lodged without delay at 1-15 a. m. on 14-5-94. It has been stated in the F. I. R. that the brother of the informant Pankaj and his wife Smt. Poonam and the informant with Sanjai Agarwal live at Bhata Kuan with his mother. They had gone to participate in the marriage in the night on 13-5-94 and the barat commenced at 10 p. m. from Chaorasi Ghanta Dharmashala and reached Dear Ganga Mandir. The informant's younger brother Pankaj, Alok and Puchi entered into altercation with Bablu, Raj Kumar Singhal in a dispute about the beer. There have been marpit with kicks and fists. Rajiv Agarwal and others in the barat intervened and separated them from scuffling. Raj Kumar Singhal and Babloo resident of Deputyganj left from Kaushalya Inter College saying that they will shower bricks and chaukas on the barat. Rajiv Kumar Agarwal resident of Deputy ganj and others who were in the barat tried to intervene and they left from the place. Thereafter, when the barat reached near Rani-ka-phatak at Saraswati Sishu Mandir gate, there had been noise and hurling of abuses. The informant learnt that there had been exchange of hot words between Pankaj. The informant's wife of Pankaj with Rajiv Agarwal proceeded to call back Pankaj. In the meantime near the gate on the road of Saraswati Sishu Mandir, Amod Kumar and Alok son of Prem Narain Sharma and Puchi s/o Sheo Nandan had exchanged hot words there. Raj Kumar Singhal was also there in the exchange of hot words. In the meantime, Amod Kumar Sharma (applicant), whose house was close to the said place, left for his house saying that he would bring his gun and then he will show you all. A lady whose name was not known to the informant tried to stop him but he could not stop. In the meantime, Amod Kumar Sharma at about 12 in the night, fired the shot which hit the Informant's brother Pankaj instead of Bablu and Raj Kumar Singhal. He fell down. Immediately, the informant took the injured with Rajiv Agarwal in a car to the District Hospital. When he reached the District Hospital, the Doctor declared Pankaj dead. The informant categorically stated in the F. I. R. that Amod Kumar Sharnm s/o Prem Sagar Sharma r/o Bhato-ka kuan P. S. Nagphani in anger fired shot with his gun and hit Pankaj who died. The learned counsel for the applicant was heard and the post-mortem report, F. I. R. , bail rejection order were placed in detail before the court. The bail application was rejected. 9, The bail application for the offence under Section 30, Arms Act was not separately filed and a common application for bail in the two case crime numbers was filed, which too was rejected. 6. In the second bail application, the applicant with his application appended Photostat copies of affidavits of Sudhir Sharma, Puchi s/o Shiv Nandan and Alok Sharma s/o Prem Sagar Sharma, which were filed before the C. J. M. after rejection of the first bail application by the High Court. The affidavits were sworn on 23-7-94 and 13-7-94, respectively. 7. In the affidavits filed with the Had bail application, it is said that the informant of the F. I. R. was not present at the time of the occurrence. It has also been said that at 12 o'clock, in the night of 13-5-94 most of the persons in the barat had drunk alcohol and were firing with their licensed guns. Suddenly, one shot hit Pankaj itself, who was standing with the deponent of the affidavit and the shot had hit the chest, who fell down. 8. It is said that a little after the occurrence, Sudhir Sharma, brother of Pankaj Sharma came to the spot with Darogaji and in one car Pankaj Sharma was taken to the District Joint Hospital. The presence of Amod Kumar Sharma at the place of occurrence was denied. 9. The learned counsel for the applicant vehemently argued that the affidavits filed by the witnesses clearly show that the applicant Amod Kumar Sharma was not present at the place of occurrence and the incident took place accidental on account of gun fires by drunken barites. He submits that in view of the new facts that has come on record, the prosecution of the applicant and genuineness of the F. I. R. itself becomes doubtful and the applicant is, thus, entitled to be released on bail. This court has notice in large number of criminal cases that the moment the F. I. R. is lodged in a non-bailable cognizable criminal case, the well-wishers and pairokars of accused persons become very active and adopt various means to tamper the prosecution witnesses and obtain such affidavits from the witnesses to show and falsify the prosecution case. This practice of tampering of witnesses by the well-wishers of the accused persons is a growing tendency. It is well-known that generally people do not want to appear as witness in criminal case and avoid to go to the court as witnesses. This reason for avoiding by persons from appearing as witnesses in the criminal case is well known. The moment a person is named in the F. I. R. as a witness for the prosecution, there are chances of their being assaulted, threatened and even killed at the instance of the well-wishers and pairokar of the accused persons, who are interested in getting the accused person to be released on bail from the custody and also to be acquitted. I do not consider it proper nor desirable to act upon such affidavit procured by the well-wishers and pairokars of the accused persons involved in such criminal offences. It is not the case that the witnesses them selves came to give affidavit or make a statement to exonerate the complicity of the accused person in the case. There was no necessity for the witnesses to have gone to the court of the C. J. M. for filing the affidavit themselves to exonerate the accused persons from the offence. Neither any notice was issued from the court nor the trial had commenced. The submission that the witnesses on having come to know that they are named as witnesses in the F. I. R. and police has searched them, thought it just and necessary to go to the court and tell the court that such an accused has falsely been implicated in the case. These affidavits are clear indications of the fact that the well-wishers and poirokars of the accused persons tampered the witnesses of the prosecution and procured the affidavit, as they desired. 10. I do not place any reliance on such affidavit, while considering the bail application. 11. It is also worth noting that the affidavits annexed with the 2nd bail application was sworn after about three weeks from the date of rejection of the 1st bail application. 12. In the bail application at the first instance, the alibi of the accused is required to be pleaded and if pleaded as a later stage the courts do not generally place reliance on such evidence of alibi. The present affidavits are not alibi evidence but the evidence of denial which on its face was procured after the rejection of the 1st bail application. I am of the view that such affidavits of denial of complicity of the accused in the commission of the crime, when stated on affidavit, during the course of investigation, or after the charge-sheet is submitted, is not to be taken note of and cannot be a ground for grant of bail. After considering the submissions of the learned counsel for the applicant, I do not feel that there is any case for allowing 2nd bail application of the applicant. 13. The 2nd bail application is rejected. Application rejected. .;