REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                 OF 2009 (Arising out of SLP (CRL) NO. 7425 of 2007)

Ashok Kumar  ...Appellant  

Versus

State of U.P. and Anr.   ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is  to the order passed by a learned Single

Judge of the Allahabad High Court  granting the prayer for bail  made by

respondent  No.2-Kamal Singh.  The  present  appeal  has  been  filed  by the

complainant.  

3. Background facts in a nutshell are as follows:

Respondent  No.2  faced  trial   in  Crime No.96  of  2006  for  alleged

commission of offence punishable under Sections 147, 148, 149, 323, 307,

302, 504 read with Sections 34 and 120B of the Indian Penal Code, 1860 (in

short the ‘IPC’). Earlier the bail application filed was rejected by the High

Court  on  16.11.2006.  In  support  of  the  second  bail  application  it  was

submitted that pellets were found on the body of the deceased by the doctor

and such pellets and the licensed rifle were sent to the ballistic expert. From

the report received it is revealed that such pellets could not have been used

by the licensed rifle of the accused. The ballistic report completely falsified

the prosecution case.  The High Court accepted the prayer for bail observing

as follows:

“It  is  admitted  case  on  behalf  of  prosecution  that  the applicant  committed  murder  of  deceased  by  causing injuries  with  the licensed  315  bore  factory  made rifle. The police report also reveals that three pieces of pellets were found by the doctor in the body of deceased Monu. These pellets and licensed rifle of the applicant were sent to Vidhi Vigyan Prayogshala Agra from where the report was  received  which  is  on  record  which  reveals  that pellets could not  be used in licensed rifle of 315 bore factory made. Such pellets are used in 12 bore weapon. Soft  Nose  Jacketed  Bullets  are  used  in  standard cartridges of 315 bore factory rifle. Therefore, this is the fresh and good ground to allow the bail  application of present applicant.

After considering the report of ballistic expert, the bail application of present applicant is hereby allowed.”   

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4. Learned counsel for the appellant submitted that the approach of the

High Court is clearly erroneous.  It is pointed out that the following factors

which were highlighted by the prosecuting agency when the bail application

was being heard have been completely lost sight of :

“It  is  admitted  that  the  death  of  Monu  occurred  because  of gunshot fired from rifle by accused Kamal Singh and the doctor recovered three pieces of metal from the body of Monu. The rifle and the pieces were sent to the Legal Science Laboratory, Agra for matching with the rifle.

The  examination report of the said rifle and the pieces of metal  dated  2.3.2007  issued  by  the  firearms,  Legal  Science Laboratory, Agra has been sent to C.J.M Gautam Budh Nagar in which it is stated that the disputed 3 nos. mutilated pellets weight  is equivalent  to standard A.A. pellets.  These kinds of pellets are used in the cartridges of soft jacket firearm example 12 bore. The disputed rifle is 315 bore factory made rifle and the standard cartridges of 315 bore uses soft nose jacket bullet. The examination report of the firearm is found to be dubious as follows:

1. As per the medical report of Monu, there was only one  entry  wound  of  bullet  on  his  body  whereas  in  firearm report  there  are  three  pellets  which  are  equivalent  to  three pellets of original 12 bore.

2. As  per  medical  report,  the  entry  of  bullet  was small  and the exit  was 3-4 times bigger.  This  kind of injury occurs only due to weapons, which  use soft nose jacket bullet i.e. 315 bore rifle.   

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3. During  the  operation  of  Monu  at  Safdarjung Hospital,  Delhi  the  doctors  found three pieces of  metal  from the body of Monu.

4. The firearm report is also doubtful on the basis as to  how three  bullets  entered  from one  hole.  As  per  medical report  during exit of bullet, the stomach of the deceased was busted and still three pellets stayed inside also.”

5. Learned counsel for the State supported the appellant’s stand.

6. Learned counsel for respondent No.2 on the other hand submitted that

the  ballistic  report  completely  falsified  the  prosecution  version  and

therefore  considering  the  relevant  factors,  the  prayer  for  bail  has  been

accepted.  

7. As rightly contended by learned counsel for the appellant, the High

Court appears to have arrived at a definite conclusion about non possibility

of  the  injuries  having  been  sustained   in  the  manner  indicated  by  the

prosecution. While considering the bail  application such a finding should

not  have  been  recorded.  Apart  from  that,  the  specific  stand  of  the

prosecuting agency as quoted above does not appear to have been noticed

by the High Court.  It has also been submitted by learned counsel for the

appellant  that  the  complainant  and  independent  eye  witnesses  are  being

subjected  to  threats  by  respondent  No.2  and  his  supporters  and  there  is

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hardly  any  progress  in  the  case  which  is  being  tried  by  the  Additional

Sessions Judge, Fast Track Court-4, Gautam Budh Nagar. From the order

sheet  it  is  revealed  that  adjournments  have been liberally granted on the

application  filed  by the  accused.  Trial  is  to  be  conducted  on  continuous

basis  in  view of what  has  been provided in  Section 209 of  the Code of

Criminal Procedure, 1973 (in short the ‘Code’).  

8. Since the accused is on bail for considerable length of time, we do not

think  it  appropriate  to  cancel  the  bail,  though  there  appears  to  be  some

substance in  the plea  that  the  impugned order  granting bail  suffers  from

various infirmities. Let the trial  be completed within three months.  If the

complainant or any witness seeks protection for appearance before the Court

during trial, the same shall be provided by the concerned police officials.

The trial Court would take up the matter on continuous basis to complete

the trial within the period indicated above.  

9. The appeal is disposed of accordingly.         

……………………………………J. (Dr. ARIJIT PASAYAT)

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……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 3, 2009

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