K.S. Rakhra, J.-
The applicant is an accused and is seeking bail in crime No. 140/2004 under Median 147, 148, 149, 120- B/302/504/506 IPC police station Kotwali Akbarpur District Ambedkarnagar.
2. The matter relates to murder of Anand Singh alias Kaire Singh who was done to done to death on 23-7-2004 in front of Telephone Exchange at Akbarpur of District Ambedkarnagar. Sri Sanjiv Kumar Singh brother of deceased claiming himself to be an eye-witness, lodged FIR at 13:35 hours on the date of incident itself against 6 persons including the present applicant and adding that they were accompanied by two more unknown persons and that the incident took place at 12:35 in the noon. According to him, the deceased was standing with him in front of Telephone Exchange alongwith the witness Ram Sen Singh and Satyavan Singh. All of sudden, the accused 1) Krishna Kumar Pandey alias Kakkoo Pandey; 2) Guddu Gaur; 3) Rajan Gaur; 4) Manoj Tiwari alongwith 2 other unknown persons, arrived there on a motor cycle and a Bolero Jeep. They were armed with revolver, pistols and country made pistols. Exhorting each other, they opened fire on him. After committing this crime they fled from the place of occurrence on their vehicles. The informant with the help of persons who had gathered on the spot, shifted the victim to the hospital on a Jeep which was found standing nearby. The victim, however, died on way to hospital. In the FIR, it was stated-that this crime has been committed at the instance of present applicant Pawan Pandey who is Ex-MLA and one Vipin Mishra who were in conspiracy with those who committed crime on the spot. It was stated that the applicant and his brother Kakkoo Pandey had enmity with the deceived.
3. It is alleged that two of the co-accused namely Manoj Tiwari and Krishna Kumar Pandey alias Kakkoo Pandey were apprehended by the police within an hour of commission of crime when they were trying to run away and were given chase by the police who had received information about the crime on RT Set. In the course of that arrest, they had opened fire on the police party and a case under Section 307 IPC and under the provisions of arms act was registered against them. From Krishna Kumar Pandey alias Kakkoo Pandey, the pistol said to have been used in commission of crime and some live bullets and empty shells of the bullet were recovered.
4. The matter was investigated by the civil police and a charge-sheet was submitted by them on 9-8-2004 against all the persons. The brother of the applicant who is an MLA, himself made some representation or complaint to the Government that his brother was falsely implicated. On this, further investigation was ordered through CB CID. Subsequently, CB CID also submitted a charge-sheet on which the incharge CJM has taken cognizance on 17-9-2005. Earlier, on the charge-sheet submitted by the civil police also the CJM had taken cognizance oil 11-8-2004. The applicant has filed an application (Crl. Misc. Case No. 1020 of 2006) on which this Court vide order dated 20-4-2006, has stayed further proceedings in the charge-sheet No. 18 of 2005 dated 12-9-2005 filed by CB CID.
5. Krishna Kumar Pandey alias Kakkoo Pandey co-accused has already been admitted to bail in crime No. 141 of 2004 under Section 307 IPC and 3 (1) of U.P. Gangsters Act, vide order dated 22-9-2005 of this Court in Criminal Misc. Case No. 1864 (B) of 2005.
6. According to the prosecution, Vipin Mishra co-accused who is allegedly involved in conspiracy as the present applicant, was she person who had gone to the deceased at his lodge and brought him to the place of occurrence on till pretext that pro-paid card of Telephone Department were being issued and they may collect the same. This Vipin Mishra has already been admitted to bail by this Court on 10-12-2004, vide order of this Court in Crl. Misc. Case No. 5281 (B) of 2004.
7. The other co-accused who were named in the FIR except Krishna Kumar Pandey alias Kakkoo Pandey, have also been granted bail by this Court. Two unknown miscreants who have been subsequently identified were Abbas and Babloo Yadav, have also been admitted to bail. Manoj Tiwari who was allegedly apprehended by the police alongwith Krishna Kumar Pandey alias Kakkoo Pandey, has been granted bail by his Court on 10-1-2006 in Crl. Misc. Case No. 3999 (B) of 2005. While granting bail, the Court had taken notice of the fact that only Interested and related witnesses were supporting the prosecution version but 10 independent witnesses who are the witnesses of that vicinity in their statement before the CB CID totally reversed the prosecution story by stating that the crime was committed only by two persons who were unknown faces and were other than the named accused. Thus, similarly, Guddu Gaur another named accused, has been admitted to bail on 6-2-2006 and while granting bail, the Court observed that there two versions of the prosecution story i.e., one of those witnesses whose statement has been recorded by the Investigating Officer of civil police and the other version is of the witnesses whose statements were recorded by the CB CID. Rajan Gaur another named accused was granted Bail on 4-1-2006 in Crl. Misc. Case-No. 3171 (B) of 3005.
8. Opposing the bail application of the applicant, learned A.G.A. as well as Sri Shivam Sharma learned Counsel for the complainant submitted that the applicant Is the mastermind-behind the crime and that he has very long criminal history of about 56 cases. Further, they have contended that the deceased had in the past, sent complaints that he was apprehending danger to his life from the applicant and another. They further argued that two witnesses Udai Pal and Chunni Lal have deposed that they had heard the applicant stating to his men that Anand Singh alias Kairey Singh be eliminated as he has started making too much interference in their business.
9. Sri Daya Shanker Mishra learned Counsel for the applicant, has very strongly argued that the applicant is accused of only conspiracy for this offence and contended that the applicant is innocent. Sri Mishra further submitted that when the named accused persons who allegedly executed the plan i.e., Guddu Gaur, Rajan Gaur, Manoj Tiwari have already been admitted to bail by this Court, there is absolutely no justification for denying bail to the applicant. He contended that out of the above co-accused persons, Manoj Tiwari was the one who was allegedly apprehended by the police alongwith the co-accused Krishna Kumar Pandey alias Kakkoo Pandey shortly after the offence when they were trying to escape.
10. About the statement given by Udai Pal and Chunni Lal about the conspiracy, learned Counsel for the applicant pointed out that both of them cannot be relied upon as they claimed to have separately reached Roadways Bus Stand at Akbarpur incidentally. Further, it was submitted that there was no probability of the applicant declaring openly and loudly at public place like the Roadways Bus Stand to his men that Kairey Singh is be eliminated.
11. It has further been argued by fife learned Counsel for the applicant that Vipin Mishra who was allegedly involved in the conspiracy and also was Instrumental in approaching the deceased and bringing him to the place of occurrence on a false pretext and with whom enmity is also alleged has already been admitted to bail.
12. So far as the past complaint of the deceased against the applicant is concerned, there is an affidavit of the Sub- Inspector from the police station Kotwali Akbarpur Ambedkarnagar to the effect that no such complaint was ever given at the police station nor do they have any record of any such complaint having been referred to the police station from either higher or collateral authorities.
13. Regarding criminal antecedents of the applicant, Sri Mishra has argued that the applicant is in politics and has no doubt been implicated in several wises due to enmity but so far as the list of cases shown against him is concerned, the applicant has explained that out of three case, he has been acquitted in 36 cases and the police has also submitted final report in many cases. The details of those cases have been shown in para-16 of the rejoinder affidavit of sri Nilesh Tiwari filed on 12-5-2006. In some cases, proceedings have been stayed by this Court and in some cases he has been discharged
14. The argument of the learned Counsel for the applicant is that although the criminal antecedents of an accused are relevant consideration for grant or refusal of bail but the bail should not be refused only on the ground of criminal antecedents.
15. After considering the submissions of both sides and the circumstances relating to the cases, I agree with the contention of Sri Mishra that if the applicant is otherwise entitled to bail, the same should not be refused simply on the ground of his criminal antecedent. This is a case wherein another co-accused Vipin Mishra also involved in the conspiracy and who had brought the victim to the place of occurrence on false pretext, has been admitted to bail. Three of the named accused persons who have allegedly executed the plan on the spot and were attributed role of firing including one Manoj Tiwari who was apprehended by the police shortly after the commission of crime, have already been admitted to bail by this Court by different Benches by different orders. Two unknown miscreants who were identified subsequently as Abbas and Babloo Yadav, have been admitted to bail and this Court has stayed further proceedings on the charge-sheet submitted by the CB C1D. The cumulative effect of all the circumstances in my opinion over weighs the criminal antecedents of the applicant and he is also entitled to bail.
16. Let the applicant Pavan Kumar Pandey be released on bail on executing a personal bond mid two sureties of Rs. 40,000/- each to the satisfaction of Court concerned in crime No. 140/2004 under Section 147, 148, 149, 120-B/302/504/506 IPC police station Kotwali Akbarpur District Ambedkarnagar. This is further subject to condition that the applicant will participate and cooperate in all the proceedings in trial and would not try to influence the witnesses not would delay the trial.
Bail granted.