RAKESH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned Counsel for the applicants and the learned A.G.A. for the State and perused the record.

(2.) ACCORDING to the prosecution the incident took place on 27.8.2009 at 10.30 A.M. while prompt report was lodged the same day at 11.30 A.M. Eight accused persons are named in the F.I.R. first informant Mukesh has made a written report to the police station concerned with the contention that eight accused persons having a pre-plan armed with fire arms were ploughing with Tractor the ridge of his field. Rakesh and Satya Narayan the brothers of the informant forbade them whereupon in prosecution of their common object of them all they made intermittent gun firing upon both of them. Rakesh sustained fire arm injury on his chest and leg. He received instantaneous death at spot. Satya Narain sustained fire arm injury in his fore-head and shoulder who died during medical treatment in the hospital. Several persons including informant, Kanhaiya, Smt. Maya Devi, Rajni and Pappu have witnessed the incident. The post mortem examination report fully supports the prosecution case.

(3.) LEARNED A.G.A. has repelled the submissions made by the learned Counsel for the applicants and has argued that co-accused Pawan Kumar and three others have been granted bail by another Bench of this Court on the ground that the contention of prosecution that the field was belonging to the informant or the other party is yet to be ascertained by cogent evidence. According to him, there was no dispute in between the parties regarding any field rather the case of the prosecution is that accused persons were dismantling the ridge of the field of informant by ploughing it with tractor whereupon both the deceased who are real brothers inter se who were cutting fodder there in their field forbade them not to dismantal the same whereupon they started indiscriminate firing upon them who sustained injuries and first informant and other prosecution witnesses of his family who were already at their house situated in the same field and lying at a distance of 40-50 meter from the spot witnessed the incident. It is not the case of accused that they exercised their right of private defence or ridge in question belonged to them or there was any dispute in between the parties regarding the ownership of the ridge. He further contended that even if there was any dispute on the point of ridge they were not justified in law to five at and cause fatal injuries to both the unarmed deceased. Moreover accused applicants are neither pleading their right of private defence of person or property nor the surrounding circumstances justify their firings on both the injured/ deceased. Even the learned Counsel for the applicants does not argue that the applicants and others fired in exercise of their right of private defence of person or property rather applicants have dwnued to have their perpetration into the crime. He has challenged the entire incident. F.I.R. is prompt which has been lodged on the day of incident itself within an hour after covering the distance of about 12 Km. from the scene of Incident to the police station concerned. AM the accused including the applicants are named accused. Specific weapons and common role of firing have been made against them all which is supported by post mortem examination report of both the deceased. It is a broad day light incident. The mode and manner of incident and assault do not entitle the applicants to bail and lastly; he submitted that long incarceration of accused in jail and principle of parity is not a ground to admit the applicants to bail.