Shiv Shanker - (1.) -This is the first bail application moved on behalf of applicant Ram Briksha Yadav, son of Sri Shiv Paltan Yadav praying to release him on bail in Case Crime No. 498 of 2005, under Sections 147, 148, 149, 308, 302, 323, 504 and 506, I.P.C. ; Section 7 of U. P. Criminal Law Amendment Act and Section 134B/135 Representations of People Act, P.S. Dhanghata, district (Basti) Sant Kabir Nagar.
(2.) BRIEFLY, the prosecution case, according to the F.I.R. lodged by Rakesh Kumar Yadav, son of Sri Shiv Paltan Yadav against seven named accused persons, is that on 25.8.2005 votes were being cast regarding election of Gram Panchayat in Sri Jai Narain Inter College Maur, Sant Kabir Nagar, wherein his sister-in-law (bhabhi) Smt. Champa Devi was also one of the contestants. Hanuman Yadav, one of the accused, was also contesting the election of Pradhan. Therefore, he tried to cast fake and forged votes, which was objected, whereupon Manoj Gupta another accused, had started abusing. Consequently, dispute arose in between first informant Rakesh Kumar and Hanuman Yadav accused as Manoj Gupta was supporter of Hanuman Yadav. Thereafter, Hanuman Yadav went to call accused Ram Briksha Yadav and took him at the polling booth from Gaya Ghat polling booth. Accused Ram Briksha Yadav alongwith his shadow constable Prem Singh and his companions reached at the Maur Inter College Polling Booth and they assaulted them. The public, present there had tried to intervene in the matter. However, Ram Briksha Yadav and his supporters did not convince. Ram Briksha Yadav in an anger condition said to his companions by exhorting them to kill Mahatam Yadav and his family members. Thereafter, he snatched the Carbine Machine Gun from his shadow constable Prem Singh and shot fire at Mahatam Yadav which hit in his chest. Consequently he fell down and died instantaneously on the spot. Supporters of Ram Briksha Yadav had assaulted with lathis and dandas upon the first informant, his uncle Janardan Yadav, Jai Prakash Yadav and Onkar Yadav. Consequently they sustained injuries on their persons. The first informant became unconscious. The incident was witnessed by several persons who had come at the polling booth to cast votes, due to which, voters ran away hither and thither. After looking such situation they became infuriated and Ram Briksha Yadav and his companions were beaten by them. Then the informant and his family members were saved. The name of assailants were Ram Briksha Yadav, Ram Pujan Yadav, Subhash Yadav, Hanuman Yadav, Manoj Gupta, Virendra Yadav and the shadow constable Prem Singh. After leaving the dead body of the deceased, the first informant went to the police station and lodged the report on 25.8.2005 at 4.20 p.m. within two hours and five minutes of the alleged occurrence. Heard Sri V. P. Srivastava, learned senior advocate, assisted by Sri Lav Srivastava and Sri R. K. Srivastava, learned counsel appearing on behalf of applicant and Sri P. C. Srivastava, learned counsel appearing on behalf of complainant as well as learned A.G.A. I have also perused the whole record carefully.
(3.) IT is contended by learned counsel for the applicant that there is cross-version of the case. Constable Prem Singh, the shadow of applicant Ram Briksha Yadav also lodged the F.I.R. against the complainant's side on the same day which was registered as Case Crime No. 498A/05 for the offence under Sections 147 and 323, I.P.C. at the same police station. IT is further contended that the applicant had gone to cast vote in Jai Narain Inter College Maur, where Hanuman Yadav met him. All the accused persons named in the F.I.R. alongwith the shadow went to the said college where some altercations were already in progress between two groups. IT is said that at the moment the applicant alongwith others reached there, then the accused persons named in the cross F.I.R. resorted to violence and started beating to him and few others with lathi and danda then the applicant snatched Carbine Machine Gun and fired one shot which hit Mahatam Yadav. Thereafter, the applicant and other injured persons were carried to the Primary Health Centre Haisar Bazar for medical aid. IT is further contended that from the side of defence, four persons, namely applicant Ram Briksha Yadav, Subhash Chand Yadav, Manoj Kumar and Prem Singh have received injuries and their injuries were examined on 25.8.2005 in between 2.45 p.m. to 3.20 p.m. The applicant immediately rushed to District Hospital Basti where he was admitted on 25.8.2005. Thereafter he was referred to Medical College Lucknow where he was admitted. In the Medical College C.T. Scan etc. was done. The applicant remained admitted there from 26.8.2005 to 17.9.2005. Serious head injury was found on the person of the applicant in the Medical College. IT is further contended that during the course of investigation, Case Crime No. 498A of 2005 was found to be a case under Sections 147, 323, 504, 506 and 308, I.P.C. The learned Sessions Judge Basti granted bail to the accused persons namely Janardan and Jai Prakash considering it the cross-version of the F.I.R. of Case Crime No. 498 of 2005. IT is further contended that one F.I.R. regarding the same incident was also lodged by the present applicant, which was registered as Case Crime No. 498B of 2005. The Station Officer Sri B. B. Singh was the Investigating Officer of the case regarding the murder of deceased Mahatam Yadav. He was involved for the offence of robbery. Therefore, he was arrested in the case. Thereafter the investigation was transferred to second Investigating Officer by the order of D.I.G. Gorakhpur. After the conclusion of the investigation, he filed the final report against the accused persons. Thereafter, the complainant approached this Court by filing a writ petition, upon which a direction was given to the concerned court to take cognizance against the accused persons. Similarly cognizance was taken in compliance of order of this Court. Thereafter, he surrendered in the jail on the direction of this Court. The writ petition filed on behalf of applicant is pending. IT is further contended that firstly the applicant was assaulted with danda. Consequently he sustained injuries. Thereafter, the shadow of the applicant opened fire upon the deceased. He did not use firearm of the shadow as it has been mentioned in the report of first informant as Case Crime No. 498B. IT is further contended that the applicant was endangered at the time of occurrence. Therefore, the shadow of applicant has used his Carbine Machine Gun in right of private defence ; otherwise the applicant, his shadow as well as his associates would be killed by the side of complainant. IT is further contended that the Investigating Officer has interrogated constable Bhal Chandra Yadav and Balram Yadav who were on duty at the polling booth. They supported the defence-case. IT is further contended that certain witnesses filed their affidavits before the S.S.P. in support of the defence case, which were forwarded to the Investigating Officer for verifying the facts. These are fourteen persons whose names have been disclosed in Para 19 of the affidavit filed on behalf of the applicant. They have also supported the defence version. IT is further contended that the Investigating Officer has interrogated independent persons namely Swarth, Babu Lal Sharma and Bramh Dev and they all supported the defence theory. IT is further contended that the Investigating Officer has interrogated head constable Riyasat Ali who was deputed as shadow of the applicant alongwith constable Prem Singh. He also supported the defence theory in his statement. Home-guards Nanduram, Chandrashekhar and Dharam Dev Singh were also interrogated. These persons were posted at the polling booth. They have also supported the defence theory. One Hasan Jamal Ansari, who is clerk in the Sales Tax Department and posted at the polling, booth was also interrogated by the Investigating Officer. He also supported defence theory in his statement. IT is further contended that after completion of investigation, the Investigating Officer has come to the conclusion that the involvement of applicant was false, hence charge-sheet was submitted against Subhash Yadav, Hanuman Yadav, Manoj Gupta and Prem Singh by exonerating the present applicant. However, the concerned Magistrate was directed by this Court in writ petition to take cognizance against the applicant also. Consequently, cognizance was taken against him. Further this Court has directed that non-bailable warrant be issued against the applicant and he should be taken into custody. In compliance of the above order, he was taken into custody. IT is further contended that both sides have received injuries in the alleged occurrence. Two sets of evidence have been collected by the prosecution. The applicant also received very serious injuries consisting of two lacerated wounds on his head, which is apparent from injury report itself. However, the bail application in the case filed against the first informant and his associates had been allowed by the Sessions Judge on the ground of aggressor. Thereafter, this bail application is liable to be allowed on the ground of cross-version. On the other hand, Sri P. C. Srivastava, learned counsel appearing on behalf of the complainant as well as learned A.G.A. has opposed the bail application by submitting that the injuries sustained by the applicant have been explained in the F.I.R. It is further contended that he was arrested by the police in the case as he was to be examined alongwith co-accused. Thereafter, he was referred to the Sadar Hospital Basti in custody from where he was referred to the Medical College Lucknow. Although he was arrested at the Primary Health Centre but he was released without any order at Basti Hospital and Medical College. He remained there from 26.8.2005 to 17.9.2005. Therefore, the arresting officer had reached to arrest the present applicant. Same time, false case was got registered by the applicant against the arresting officer for the offence under Section 394, I.P.C. which was registered as Case Crime No. 249 of 2005 at police station Chauk, Lucknow, wherein the relative of the applicant namely Sarveshwar Yadav was made the first informant. The Investigating Officer was arrested on 27.8.2005 in the case of Section 394, I.P.C. He was suspended by the Police Authority. It is further contended that F.I.R. lodged by the applicant as Case Crime No. 498B of 2005 was found false in the investigation. Thereafter, final report was submitted on 5.5.2005. After the arrest of the first Investigating Officer, the investigation was transferred to other official by the order of I.G. Thereafter, the Writ Petition No. 60 of 2006 was filed in this Court on 3.1.2006 on behalf of first informant. The second officer has exonerated the present applicant by filing charge-sheet against others. The said criminal writ petition was decided on 24.3.2006 and the concerned Magistrate was directed to take cognizance against the applicant also. It is further contended that another Writ Petition No. 11283 of 2006 was also filed on behalf of the first informant wherein it was prayed that gunners be provided to the applicant. It is further contended that he had surrendered in this case on 10.11.2006. On 22.11.2006 he had celebrated the birth day ceremony of Sri Mulayam Singh, the present Chief Minister of U. P. State in jail by cutting the cake of one quintal and 1 kg. It is very surprising as to how such cake reached inside the jail, where he was detained. Therefore, this also shows that he is a very influential person belonging to the Samajvadi Party and the jail authorities had not objected to send such cake inside the jail. It is further contended that without permission of the Court he was sent to Trauma Center, Lucknow on 24.11.2006. He was sent to District Jail, Basti on 24.12.2006. It is further contended that charge-sheet has been filed in Case Crime No. 498 of 2005 registered on the F.I.R. of the first informant of this case. It is further contended that the shadow constable Prem Singh lodged a report which was registered as Case Crime No. 498A of 2006, wherein he has stated that his Carbine Machine Gun was snatched by the present applicant and the fire was made upon the deceased while the contention of learned counsel for the applicant is that he did not use the Carbine Machine Gun of his shadow upon the deceased but his shadow opened the fire by his Carbine Machine Gun for the purpose of saving the life of present applicant as it was his duty. Therefore, the F.I.R. was also lodged by the applicant which was registered as Case Crime No. 498B of 2005 and final report was submitted by finding the false case. The another version on behalf of applicant is that he himself shot fire upon the deceased after snatching Carbine Machine Gun of his shadow constable Prem Singh. In such situation, there was no necessity to open fire upon the deceased after snatching Carbine Machine Gun of his shadow but the shadow himself used the said weapon upon the deceased. It is further contended that it is not a cross case. There was no occasion to commit the murder of deceased by invoking the right of private defence as none on complainant's side was armed with any deadly weapon and the applicant committed murder of deceased due to his high handedness and being the worker of the ruling party (Samajvadi Party) and the Investigating Officer had tried to save the applicant. Consequently, he was exonerated. This also shows that there was also political pressure against the Investigating Agency to file the final report against the applicant. However, this Court has given direction to the concerned Magistrate to take cognizance against the applicant as prima facie evidence was available on record against the applicant. It is further contended that forged medical certificates have been procured. It is further contended that there was criminal history of 15 cases against the applicant. The injured witnesses of the case have supported the prosecution story in their statements.;