RADHEYSHYAM Vs. STATE OF U P

JUDGEMENT

(1.) THE present bail application has been moved on behalf of the accused- applicant Radheshyam for enlarging him on bail in Case Crime No.175 of 2011, under Section 302/506 IPC, P.S. Soraon, District Allahabad. Heard learned counsel for the applicant, learned A.G.A. for the State, learned counsel for the complainant and perused the record. The prosecution case in brief is that on 1.4.2011 Vijay Pratap Singh (deceased) was going to his house situated at Shivkuti, Allahabad from Tehsil Soraon by Motorcycle No.UP70-AV-2872. The complainant Bhanu Pratap Singh and one Vinay Kumar Singh were also coming behind him on another motorcyle. At about 6.50 p.m. in front of house of Bharat Lal Prajapati within village of Malak Harhar, Radhey Shyam, Girish Chand and Purshottam overtook Vijay Pratap Singh riding on motorcycle. Two persons had exhorted and Radhey Shyam fired from his country made pistol in the back of Vijay Pratap Singh. With the help of passers-by the complainant brought his brother in serious condition to Jeewan Jyoti Hospital. There he died on 7.4.2011 at 11.45 p.m. It has been argued on behalf of the applicant that as per the version of the FIR, the accused applicant is said to have fired on the deceased from behind and in that case, the gunshot wound ought to have been caused on his back, but according to the post mortem examination of the deceased, no gunshot wound was found on his back, which indicates that none had seen the occurrence in question; that the accused applicant has been falsely implicated in this case due to previous enmity of litigation as the brother of the complainant, namely, Udai Pratap Singh was an accused in the murder case of the applicant's brother. It has further been argued on behalf of the applicant that as per the death memo dated 7.4.2011 sent from Jeewan Jyoti Hospital to Police Station Kydganj, Allahabad, the deceased was shot dead by some unknown person which also shows that the accused applicant was falsely nominated in the FIR and that as per the post mortem report the death of the deceased occurred due to septicemia. It has also been argued on behalf of the applicant that PW-1 Bhanu Pratap Singh has deposed in the trial court that he did not give his bloodstained cloth to the Investigating Officer which also shows that he was not present on the spot at the time of the incident in question, so the accused applicant should be enlarged on bail.

(2.) ON the other hand, learned A.G.A. and learned counsel for the complainant have opposed the prayer for bail and have further submitted that the FIR of this case was lodged at 9.35 p.m. the same day, i.e., within 2¾ hours of the occurrence in question; that the accused applicant is named in the prompt FIR as an accused; that in the FIR itself the specific role of making fire upon the deceased has been assigned to the applicant; that as per the post mortem report, the death of the deceased occurred due to septicemia and shock as a result of ante mortem injuries; that in the injury report the gunshot wound was found on the back of the deceased and there is no mention in the injury report that some unknown person made fire on the deceased/injured; that the deceased was admitted in the hospital by Vinay Pratap Singh, who is the eye witness in the FIR and that the source of information as regards the assault by some unknown assailant had not been disclosed by the doctor who prepared the death memo and that there is no likelihood or probability that the complainant party would have told the hospital authorities that the deceased was assaulted by some unknown assailants because the FIR in which the accused applicant has been named was lodged on the day of occurrence in question itself by the brother of the deceased, so the accused applicant should not be enlarged on bail. Considering all the facts and circumstances of the matter and the submissions of the counsel for the parties but without expressing any opinion on the merits of the case, I do not find it a fit case for bail.