- (1.) RAVINDRA Singh, J. This applica tion has been filed by the applicants Rameshwar Ram, Sub-Inspector, Ashok Kumar Constable No. 753 and RAVINDRA Maurya Constable No. 657 with a prayer that they may be released on bail in Case Crime No. 63 of 2006 under sections 147, 148, 149, 302, 218 and 34 I. P. C. P. S. Pipri, District Sonebhadra.
(2.) THE prosecution story in brief is that the F. I. R. of this case has been lodged by Kashinath Singh, Inspector C. B. C. I. D. , Varanasi on 21. 2. 2006 at 6. 45 p. m. At P. S. Pipri in respect of the incident which had occurred on 2. 9. 2003 in case crime No. 63 of 2006 (C. B. No. 342 of 2006) under sections, 147, 148, 149, 302, 201, 218, 342 and 34 IPC, against the applicants and twelve other co-accused persons. Its F. I. R. has been regis tered after conducting the preliminary en quiry which was entrusted to the C. B. C. I. D, by Additional District Magistrate, Sonebhadra because the District Magis trate, Sonebhadra has directed the A. D. M. for conducting Magisterial inquiry, who submitted the inquiry report dated 17. 8. 2004 with recommendation that the investigation of this case may be entrusted to C. B. C. I. D. because in the alleged incident dated 2. 9. 2003 two persons were killed in a fake police encounter. THE recommenda tion of the Additional District Magistrate, Sonebhadra has been accepted by the State Government and the investigation of this case was transferred to C. B. C. I. D. from civil police, Sonebhadra. In a preliminary inquiry the C. B. C. I. D. came to the conclu sion that the deceased persons namely Prabhad Kumar and Rame Shanker alongwith Ram Pravesh and Jai Shanker who were apprehended by the police from the platform of railway station Jharokhas when they had come down from a train to take the water. THEy travelling in a train which was stationed there for the purpose of crossing the other train, Ram Pravesh and Jai Shanker were taken up by the po lice in a jeep but after covering some distance they were taken in a bus to the police out post Dala but the deceased Prabhat Kumar and Rama Shanker were taken by the police in another train and they were taken down from the train at railway sta tion Renukoot. It was witnessed by the public subsequently the police has shown an encounter with the miscreants and lodged the F. I. R. at P. S. Pipri in case crime No. 321 of 2003 under sections 147,148,149 and 307 IPC and case Crime No. 320 of 2003 under section 25 Arms Act, it was lodged by S. S. I. Jai Nath Misra, on 2. 9. 2003 at 3. 30 p. m. alleging therein that applicants and 12 other co-accused persons came in search of the miscreants who had commit ted the bus robbery in the night of 1/2, 9. 2003 in a jungle, at about 12. 30 p. m. , the miscreants discharged the shots towards the police party, in the self defence the applicants and other police personnel also discharged the shots consequently two miscreants (the deceased of this case) lost their lives whose dead bodies were found in the jungle near the dead-body of a mis creant one country made pistol and four empty cartridges were found and from the possession of another miscreant one S. B. B. L gun, five empty cartridges and four live cartridges in his belt were found, but in the said incident no police personal sustained any injury. THE dead bodies of the miscre ants could not be identified, after preparing the inquest report the dead bodies were sent to the mortuary. THE story of the police showing encounter was absolutely false and baseless, therefore, the District Magis trate, Sonebhadra set up a Magisterial in quiry in which it was found that story set up by the police was false and concocted and all the police personal who were claiming that they fired at the miscreant in the self defence have been made accused in the present case. THE post-mortem ex amination reports show that one of the de ceased had sustained two fire-arm wounds of entry, two exit wounds, two other abra sions and another deceased had sustained two gun shot wounds of entry, two exit wounds and one abrasion. THE applicants and other co-accused have killed two inno cent persons thereafter a false story of po lice encounter has been concocted. THE applicants applied for bail before learned Sessions Judge, Sonebhadra, who rejected the same on 18. 5. 2007, being aggrieved from the order dated 18. 5. 2007 the present bail application has been filed by the appli cants. Heard Sri Yogendra Yadav, learned Counsel for the applicants, learned A. G. A. and Sri P. K. Singh, learned Counsel for the compliant and perused the record including the case diary. It is contended by learned Counsel for the applicants: (i) That in the night of 1/2. 9. 2003 at place of Rantoka, P. S. Duddhi, District Sonebhadra the passengers of the bus were robbed, its F. I. R. was lodged against the unknown persons in crime No. Nil of 2003 under section 392/323 IPC at po lice out post, Renukoot, thereafter, it was registered as case crime No. 381 of 2003 at P. S. Duddhi, the in vestigation of this case was initi ated and a team for combing pur pose was conducted, the team was in search of miscreants in the forest but on getting a clue in respect of some miscreants, the combing po lice party surrounded the miscreants at about 12. 30 p. m. on 2. 9. 2003 the miscreants were asked to sur render but the miscreants opened the fire at the police party, in self defence the firing was also done by the police party including the ap plicants consequently two miscre ants lost their lives and remaining miscreants successfully fled away, even the deceased persons were not known to the police party, they were unknown, their inquest reports and post- mortem examina tion reports were also prepared as unknown miscreants and from the possession of the deceased persons country made pistol and S. B. B. L. gun having empty cartridges in the barrels were also recovered. The deceased persons were not having any enmity with the police. The story of the encounter given by the applicants is natural and trustwor thy. (ii) That in the present case the allega tion that the deceased persons were apprehended by the police from the police station Jharokhas but no body has named the appli cants in the statements recorded under section 161 Cr. P. C, it is a vague allegation, even during in vestigation no specific allegation has been made against the appli cants. (iii) The applicants were having no mo tive or intention to commit the al leged offence. (iv) The prosecution story is cor roborated by the medical evidence and there is no evidence to show that the deceased persons were beaten by the applicants prior the alleged incident and there is no evidence to show that the deceased were killed in some other manner. (v) In the present case the fair investi gation has not been done because the statements of the witnesses who were present near the place of the occurrence have not been re corded, even the prosecution has failed to collect me evidence to show that no police encounter has taken place. The I. O. has submitted the charge-sheet mainly on the ba sis of magisterial inquiry and sus picion in the encounter the police of some other police stations also participated; its information has been given to the superior officers of the police. (vi) The applicants are police person nel, they are State Government servant, they are having no crimi nal antecedent, and they undertake that they shall not temper with evidence and they shall co- operate with trial, therefore, they may be released on bail. In reply of the above contentions, it is submitted by learned A. G. A. and learned Counsel for the complainant that in the present case two unknown persons who were apprehended by the police from the Jharokhas railway station have been killed subsequently by the police showing a police encounter. The deceased were not dacoits nor they were involved in any criminal cases prior their killing, one of the deceased Prabhat Kumar was student of the Allahabad University. After killing the deceased persons in some other manner the applicants and other co-accused persons concocted a story of police encounter alleg ing that the deceased persons were lost their lives in a police encounter and the recovery of country made pistol and S. B. B. L. gun alongwith cartridges have been planted by the police and no looted or stolen property has been recovered from the possession of the deceased. The story of police encounter is belied by the post mortem examination report. The number and nature of the injuries show that such injuries may not be caused in a police en counter but no police personal has sus tained any injury, even no public person has been made the witness of the aforesaid story. It is also surprising that according to the police version a bus was robbed by the miscreants in the night of 1/2. 9. 2003 but encounter has taken place at about 12. 30 on 2. 9. 2003, the distance of the place where the robbery was committed and dead bodies has recovered was 40 or 50 meters, it also belies the whole prosecution story because after committing robbery no miscreants shall stay at the same place after expiry of such a long period.
(3.) THE F. I. R. lodged by the police showing the police encounter is highly doubtful because no other miscreant has been shown apprehended by the police at the time of the alleged encounter but sub sequently two other persons namely Ram Pravesh and Jai Shanker who were also apprehended from railway station Jharok has have been made accused and the re covery of one country made pistol along with three live cartridges and Rs. 500 has been shown from the possession of the Ram Pravesh and recovery of two live car tridges and two silver chain has been shown from the possession of the Jai Shan ker. THE recovered articles have not been identified by any person. It is further submitted that in the present case the magisterial inquiry was done in which it was found that the story of encounter shown by the applicants and other co-accused person was false, the deceased were innocent persons, they were appre hended by the police from Jharokhas rail way station subsequently they have been killed. After Magisterial inquiry the matter was handed over to C. B. C. I. D. during in vestigation I. O. recorded the statements of Jai Nath Mishra who was S. S. I, of Duddhi on the dty of alleged incident, he is also ac cused of the present case. He stated that in the night of 1/2. 9. 2003 at about 10 p. m. he left the police station in the company of other constable for the purpose of patrol ling but in the night about 1. 30 a. m. he re ceived information that the bus has been robbed in the jungle of Rantoka, its infor mation has been registered at P. S. Renuk-oot thereafter at about 8. 00 a. m. On 2. 9. 2003 a wireless message has been given to police station concerned on the direction of the S. P. Sonebhadra he also came at the place of occurrence on 2. 9. 2003 and he also join the combing party, at about 12. 30 p. m. the miscreants fired at the police party con sequently two miscreants were found dead, from their possession one country made pistol and S. B. B. L. gun have been recov ered, they could not be identified by any person, in that police encounter no police personal had sustained any injury. Its re port was registered in case crime No. 321 of 2003 under sections 147, 148, 149 and 307 IPC and crime No. 322 of 2006 and 323 of 2006 under section 25 Arms Act. THE in quest report was prepared as of unknown miscreants but subsequently they were identified as Prabhat Kumar Arun and Rama Shanker Sahu. THEreafter S. I. Gopal Singh was sent to the native places of the deceased for the purpose of giving infor mation and to hand over the dead bodies, but family members of the deceased did not want to take the dead bodies. THEreaf ter their cremation was done at the bank of Kanhat River. It has also been stated by the witnesses that the distance of the place of robbery and the place of recovery of dead bodies was about 40 to 50 meters. It is fur ther stated that the miscreants were seven or eight in number. THE statement of the co-accused Jai Narain Misra is absolutely false and concocted; it has been contro verted by family members of the deceased also because they have stated that the infor mation was given to them after doing the cremation. The statement of S. I. Gopal Singh has also been recorded who stated that on 3. 9. 2003 at about 3. 35 a. m. he was going to attend the meeting after making the G. D. Entry but he was directed by the S. P. Sonebhadra to have contact with C. O. Pipri, he was apprised by C. O. Pipri that in the jungle of Rantoka two dead bodies of the miscreants namely Prabhat Kumar Arun and Rama Shanker Sahu have been identified, its information has to be given to their family members for the purpose of handling over the dead bodies, thereafter he went to the houses of the deceased but the family members were not ready to re ceive the dead bodies, its entry has been made in the G. D. dated 3. 9. 2003. The statement of Lallan Prasad, the father of the deceased Prabhat Kumar Arun has been recorded, he has stated that he is a retired teacher and his deceased Prabhat Kumar Arun was student of Allahabad University. On 2. 9. 2003 he was going to his sister's house in a train, the train was stationed at Jharokhas station for the purpose of cross ing of another train from where he was apprehended by the police subsequently he has been killed by showing a police encounter. On 3. 9. 2003 at about 6. 00 p. m. when he was going to offering worship, he was informed by the police that his son has been killed in a police encounter, he be came unconscious and fell down, thereafter when he become conscious, he came to his house but police has not informed about the place of the dead-body, he came to his parental village in a jeep where he stayed in the night but in the morning of 4. 9. 2003 he alongwith his brother came at P. S. Dud dhi where he came to know that the dead-body of his son were cremated, in the event of 3. 9. 2003, even the photo of the deceased was not given to him. He was apprised by some eye-witnesses that the dead-body was cremated on 3. 9. 2003 at about 4. 00 p. m. and the police has done a fake en counter. He was not duly informed neither the dead-body nor the photo was given to him. Thereafter he gave the information to the police and other higher officers for registering the case but no action was taken by them. The same statement was given by the witness Ram Chandra, the uncle of the deceased Prabhat Kumar Arun. The I. O, recorded the statement of one witness Lakshman Thakur who gave the detail version about the arrest of the deceased from Jharokhas railway station.;