Supreme Court of India
ASHOK KUMARversusSTATE OF U.P. AND ANR.
- Citation
- 2009 INSC 94
- Decided
- 3 February 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
A bail court should not record a definitive finding on the merits of the case; consequently, the High Court's finding that the injuries could not have been caused by the accused's weapon was improper, but the bail was not cancelled.
Summary
The appellant, the complainant, challenged a bail order granted by the Allahabad High Court to accused Kamal Singh, who was charged with murder and related offences. The High Court had allowed bail on the basis of a ballistic report stating that the pellets recovered from the victim could not have been fired from the accused's licensed 315‑bore rifle. The appellant argued that the ballistic report was dubious and that the High Court had improperly concluded on the merits of the injury causation while entertaining the bail application. The Supreme Court held that a bail court should not record a definitive finding on the merits of the case, and therefore the High Court’s finding was improper, but since the accused had already been on bail for a considerable period, cancelling the bail was not appropriate. The Court directed that the trial be completed within three months on a continuous basis, with police protection for witnesses if needed. The appeal was disposed of without overturning the bail order.
Issues considered
- Whether a court entertaining a bail application may record a finding on the merits regarding the possibility of the accused causing the injuries.
- Whether the bail granted on the basis of the ballistic report should be cancelled in view of alleged infirmities in that report.
Legislation cited
Subjects
bailballistic reportmurdertrial delaywitness protectionSection 209 CrPChigh court findingscriminal procedure
Judgment
[2009] 1 S.C.R. 726
A ASHOK KUMAR
v.
STATE OF U.P. AND ANR.
(Criminal Appeal No. 202 of 2009)
FEBRUARY 3, 2009
B
[DR. ARIJIT. PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.)
Bail: Grant of bail - High Coutt granted bail giving finding
C about non possibility of the injuries sustained by the
deceased in the manner indicated by prosecution - Held:
While considering bail application, such finding should not be
recorded.
0 The bail application filed by accused-respondent 2
was allowed by High Court on the ground that ballistic
report revealed that pellets found in the body of the
deceased could not be caused by the factory made rifle
of the accused.
E The complainant-appellant challenged the order of
High Court on the ground that High Court failed to see
that the examination report of the firearm was dubious.
Disposing of the appeal, the Court
F
HELD: The High Court arrived at a definite
conclusion about non possibility of the injuries having
been sustained by deceased in the manner indicated by
the prosecution. While considering the bail application,
such a finding should not be recorded. The order sheet
G revealed that adjournments were liberally granted on the
application filed by the accused. Since the accused is on
bail for considerable length of time, it is not appropriate
to cancel the bail, though there appears to be some
H 726
ASHOK KUMAR v. STATE OF U.P. AND ANR. 727
.,..._ substance in the plea that the impugned order granting A
bail suffers from various infirmities. The trial should be
completed within three months. If the complainant or any
witness sought protection for appearance before the
Court during trial, the same should be provided by the
concerned police officials. The trial Court would take up B
the matter on continuous basis to complete the trial within
the prescribed period. (Para 8) [730-E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 202 of 2009.
c
From the Order dated 22.6.2007 of the High Court of
Judicature at Allahabad in Crl. Misc. II Bail Application No. 9716
of 2007.
Sona! Jain, Sachin Nagar, Umesh Chaudhary and Pravir D
-~
Kumar Jain for the Appellant.
Sushi! Kumar, L.R. Khatana, S. Rajappa, T.N. Singh,
Rajeev Dubey and Kamlendra Mishra for the Respondents.
The Judgment of the Court was delivered by E
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 F
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
G
. 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 appli_cation filed was rejected by the High Court on
16.11.2006. In support of the second bail application it was
H
728 SUPREME COURT REPORTS (2009] 1 S.C.R.
A submitted that pellets were found on the body of the deceased
by the doctor and such pellets and the licensed rifle were $en!
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
B 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
c 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
D 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.
E
After considering the report of ballistic expert, the bail
application of present applicant is hereby allowed."
4. Learned counsel for the appellant submitted that the
approach of the High Court is clearly erroneous. It is pointed
F 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
G 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
H
ASHOK KUMAR v. STATE OF U.P. AND ANR. 729
[DR ARIJIT PASAYAT, J.]
metal dated 2.3.2007 issued by the firearms, Legal A
~
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 B
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
c
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
D
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.
3. During the operation of Monu at Safdarjung
Hospital, Delhi the doctors found three pieces of metal E
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." F
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 G
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 H
730 SUPREME COURT REPORTS [2009] 1 S.C.R.
A 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
B 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 hardly any -.
progress in the case which is being tried by the Additional
c 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
D
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.
E 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
F above.
•
9. The appeal is disposed of accordingly.
D.G. Appeal disposed of.
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