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Allahabad High Court refuses to grant bail to accused in encroachment dispute

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The Allahabad High Court has refused to release on bail the accused in the case of killing two people by firing and also killing an injured eyewitness in a land encroachment dispute.

A Single Bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by Dharmendra and Satendra.

Both the bail applications have been filed by the accused applicants with the prayer to enlarge them on bail in case under Sections 147, 148, 149, 302, 504 IPC and Section 7 Criminal Law Amendment Act, police station Badalpur, district Central Commissionerate Gautam Budh Nagar.

The facts of the case are that a first information report was lodged on 09.02.2021 at 02:29 AM, regarding an incident that took place on 08.02.2021 at 11:20 AM against the eight named accused persons including the applicants and 2-3 unknown persons alleging inter alia that Devendra and Ravindra, who are real brother had made an encroachment over the land of Narendra, resident of his village.

On account of this reason, a meeting was convened in the office of Manoj Pradhan. On 08.02.2020 at about 10:30 AM, villagers gathered there and Devendra was also called, but he refused to participate in the meeting by saying that he will directly come to the plot.

On reaching there, they found that Devendra along with his brother Ravindar, Satendar, Dharmendra, Jitendar and his associates Bhopal, his brother, Amit Bansal and 2-3 unknown persons were already present there at some distance from the plot. When the informant and others reached there at 11.20 AM, they started abusing and firing from their respective weapons upon them with the intention to kill, which hit his brother Suresh alias Salek, Amit and Prem.

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In addition to him, the said incident was witnessed by Jaideep, Narendra, Rajesh ,Vipin and other persons already present there. Due to the indiscriminate firing an atmosphere of fear was created and people started shutting doors of their house. Accused persons fled away from the spot. Injured persons were taken to the hospital with the help of the villagers, but on the way to Yashoda Hospital, Amit succumbed to the injury, whereas Suresh also died in Colambia Asia Hospital during treatment. Treatment of injured Prem is going on in Yashoda Hospital, whose condition is also very serious.

The FIR further mentions that after the postmortem on the cadaver of Amit and Suresh, they took the bodies to his native village and after performing the last rites, they have come to the police station to lodge the report.

It is submitted by G.S. Chaturvedi, senior counsel for the applicants said that the occurrence took place on 08.02.2021 at 11:20 AM, the injured Amit and Suresh died on 08.02.2021 in the hospital.

Thereafter information about the death of Suresh was given to the police by Shish Alam (Driver of Ambulance of Colombia Hospital) at 1.45 PM and information about the death of Amit was given by Ved Pal at 1.47 PM on 08.02.2021.

Referring the aforesaid facts, the main substratum of argument of the counsel for the applicants is that though the informant is said to be an eye witness of the incident dated 08.02.2021, but the first information report of the incident was lodged after, inquest, post mortem and cremation of the dead bodies of the deceased, on 09.02.2021 at 02:29 AM, which goes to suggests that no one has seen the occurrence and the F.I.R has been lodged afterthought and with legal consultation.

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It is next submitted that in such matter non-lodging of prompt F.I.R creates serious doubt upon the prosecution.

It is further argued that as per postmortem report of deceased Amit, he has received one fire arm injury ( one entry wound and one corresponding exit wound) and deceased Suresh has received three fire arm injuries (three entry wound and three corresponding exit wound) and one abrasion. Injured Prem has received one firearm injury on his chin mandible region and it has not been specified by any of the witnesses as to who caused injuries to the injured and deceased.

Chaturvedi further contends that the deceased and injured have received only five firearms injuries, but from the place of occurrence seven empty cartridges, i.e. three of 32 bore, three of 30 bore and one of 315 bore pistols were recovered, which are inconsistent with the prosecution case.

It is also contended that the informant and witnesses had not received any injury, which itself creates doubt on the prosecution case. The applicant has been falsely implicated in this case due to the election of village Pradhan.

It is contended by the counsel for the applicants that there is no chance of the applicants fleeing away from the judicial process or tampering with the prosecution evidence. The applicants do not have any criminal history. The applicants are languishing in jail since 11.2.2021 and in case they are released on bail, they will not misuse the liberty of bail and cooperate with the trial.

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Additional Government Advocate and I.K Chaturvedi, senior counsel appearing on behalf of the informant opposed the prayer for bail of the accused applicants by contending that it is a case of indiscriminate firing in which two persons have lost their lives and one received injuries and in a case of indiscriminate firing, often people try to save themselves rather to see as to whose bullet is hitting whom. There is a strong motive against the applicants.

I.K Chaturvedi, counsel for the informant has also contended that injured witness Prem, who was the star witness of Case under Sections 147, 148, 149, 302, 504 IPC and Section 7 of Criminal Law amendment Act, police station Badalpur, district Central Commissionerate Gautam Budh Nagar, has also been done to death and in this regard a first information has been lodged against Ravindra, Devendra, Amit Bansal (accused in the instant case ) and two unknown persons at case under Sections 302/120-B IPC, police station Badalpur, district Central (Commissionerate Gautam Budh Nagar), photocopy of the report has been brought on record by filing supplementary counter affidavit.

It is also submitted that both the applicants and co-accused Devendra, Ravindra, Jitendra, Bhopal and Mahipal were arrested from Delhi and at the time of arrest, they also resorted to firing at the police party and in respect thereof police lodged separate first information report. Recoveries have also been made from them and in respect thereof three separate FIRs were lodged.

They further contended that innocence of the applicant cannot be judged at pre-trial stage. In case, the applicants, who are hardcore criminal, are released on bail, they shall try to misuse the liberty of bail and hence, the bail applications of the applicants are liable to be rejected.

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“Having heard the argument of the counsel for the parties, I find that a heinous crime has been committed involving the gruesome murder of two persons in broad day light by resorting to indiscriminate firing and Prem, who was injured witness in the instant case has also been done to death on 16.12.2021 by the accused persons.

Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicants, nature of injuries and severity of punishment, reasonable apprehension of tampering with the witnesses or apprehension of threat to the informant, the manner in which the crime was committed and the fact that the injured witness has been done to death, I do not find any good ground to release the applicants on bail”

-the  Court observed while rejecting both the bail applications.

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