Shri Kant Tripathi - (1.) THE applicant Tarun Harish Sharma has moved this application for bail in the Case Crime No. 634 of 2008 under Sections 302, 307 and 120B, I.P.C., Section 7 of Criminal Law Amendment Act, Section 27 of the Arms Act and Section 2/3 of U. P. Gangster and Anti-Social Activities (Prevention) Act, 1986, P.S. Hathras Gate, district Hathras.
(2.) HEARD Sri Satish Trivedi the learned senior counsel assisted by Sri Anup Trivedi the learned counsel for the applicant and the learned A.G.A. for the State and perused the record. It is alleged that on 29.11.2009 the marriage of the complainant's son was being solemnized in Navgrah Temple, Hathras. His nephews Swetambar and Pitambar and other relatives had come to attend the marriage. At about 10.45 p.m., the complainant on hearing a noise of firing came to the main gate of the temple and found that five persons namely Rakesh Kumar, Mangi, Amit Kumar, Swetambar and Pitambar had sustained fire arm injuries. The injured Anil Kumar, Rakesh Kumar and Mangi died due to fire arm injuries, and other two injured, namely, Swetambar and Pitambar, anyhow, survived. It is also alleged that the applicant Tarun Harish Sharma, who is a practising advocate in Hathras, made the fire on all the deceased and injured with his rifle and fled away in his car. Both the injured witnesses Swetambar and Pitambar have stated during the investigation that the applicant himself disclosed his name and other identity at the time of the altercation which took place before the incident. The applicant's relative Mahesh Chandra and Pappu alias Parshottam, who had come, respectively, from the district Etah and Bharatpur also supported the incident under Section 161, Cr. P.C. The local witnesses Vimal Kumar Sharma, Bhagwati Prasad Sharma and Ravendra Kumar Upadhyay have also given eye-witness account of the occurrence under Section 161, Cr. P.C. and have supported the story of the main complicity of the applicant. The applicant's driver Mukesh alias Neta was also involved in giving assistance to the applicant who has made his confessional statement before the Additional Chief Judicial Magistrate, Hathras on 10.12.2008 and has stated that it was the applicant who killed all the three deceased and caused injuries to injured Swetambar and Pitambar with a fire arm. The police has filed charge-sheet against the applicant after completion of the investigation. Mr. Satish Trivedi the learned senior counsel submitted that the confessional statement of the co-accused Mukesh alias Neta has not been recorded by the concerned Magistrate in due compliance of Section 164, Cr. P.C. The Magistrate has not ascertained as to whether the co-accused made the confessional statement voluntarily and did not put any question to the co-accused in this regard. The learned senior counsel further submitted that the confessional statement of co-accused is of no value in view of the law laid down in the case of Preetam v. State of M. P., (1996) SCC (Cri) 1343. The confessional statement of co-accused has no value against the applicant in view of the fact that the co-accused has not given any statement against himself but has made incriminating statement against the applicant only. Such type of confessional statement being beyond the scope of Section 30 of the Indian Evidence Act, 1872 is not relevant against the co-accused.
(3.) IT was further submitted on behalf of the appellant that the appellant is not named in the F.I.R. If the injured witnesses Swetambar and Pitambar had come to know about the name and identity of the applicant, there was no reason for them to conceal this fact and not to disclose the same to the complainant before lodging of the F.I.R. The other two witnesses namely Mahesh Chandra and Pappu alias Parshottam Das are respectively residents of the district Etah and Bharatpur and as such they were not in a position to disclose the name and other identity of the appellant. The police has not held any test identification parade for identification of the appellant by these two witnesses. IT was further submitted that in the F.I.R. it has been alleged that the assailants fled away in an Indica Car. Now the story that has been set up is that the assailant fled away in the Santro Car U. P. 91H 8634 belonging to the applicant's father. IT was also submitted that the applicant being an advocate, was appearing in several cases against the police and has himself filed a criminal complaint against Ashtosh Tripathi, S. O. Mursan, Rakesh Sharma, Inspector, P. S. Kotwali, Hathras and 60-70 police personnel including Rameshwar Upadhyay, Block Pramukh, who happens to be the brother of Sri Ram Veer Upadhyay a Minister in the U. P. Cabinet. These three persons, in connivance with the complainant and his witnesses, got concocted the instant case against the applicant. The learned A.G.A., on the other hand, submitted that the applicant has a criminal history. The involvement of the applicant as the main assailant in committing the murder of all the three deceased and also in causing injuries to the injured Swetambar and Pitambar is not only supported by the injured witnesses Swetambar and Pitambar and complainant's relatives Mahesh Chandra and Pappu alias Parshottam Das but also by the local witnesses, Vimal Kumar Sharma, Bhagwati Prasad Sharma and Ravendra Kumar Upadhyaya. All of them have given not only eye-witness account of the occurrence but have also stated that it was the applicant who committed the murder of all the three deceased and caused injury to both the injured with fire arm. Adequate evidence has been collected during the investigation. It was further submitted that the relevancy of the confessional statement made by the co-accused cannot be examined at the stage of bail. No doubt the applicant happens to be a practising advocate but it is no ground to enlarge him on bail.;