ARVIND KUMAR @ BABLU Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellant and learned A.G.A. for the State of U. P.

(2.) THIS is second bail application moved on behalf of the appellant Arvind Kumar alias Bablu. His first bail application has been rejected by the another bench of this court on 30.11.2011.

(3.) IT is contended by learned counsel for the appellant that the appellant and co -accused Shanker Lal Kori alias Pappu have been convicted for the offence punishable under sections 302/34, 323/34 IPC and the appellant has been further convicted for the offence punishable under section 25/3 Arms Act. The FIR of this case has been lodged by P.W. 2 Vishal Ram Ambedkar on 2.2.2005 at 5.15 A.M. in respect of the incident allegedly occurred in the night of .2.2005 at about 12 O'clock alleging therein that there was enmity with the appellant in respect of the partition of the ancestral property. In the night of .2.2005 at about 12 O'clock when the first informant and others after taking the meal were sleeping, all of sudden the appellant along with the Ram Raj and Shanker Lal Kori came to the house of the first informant and they demanded papers of the land, they made the search of the bags and boxes. On protest the appellant discharged the shot by the country made pistol causing the injury to the father of the first informant. The mother of the first informant was also beaten by the butt of the country made pistol and dandas by the companion of the appellant. The deceased after sustaining the gun shot injury, in a shouting condition he ran towards the house, but prior to reaching the door of the village Pradhan, the father of the first informant succumbed to his injuries. The alleged incident was witnessed by the first informant, his mother, brother and sisters in lantern light. According to the post mortem examination report the deceased has sustained a fire arm wound of entry 1.5 x 05 cm x cavity deep having blacken margin on left side of scapula, its exit wound was on the right side of the chest 3 cm. below the nipple having the dimension of 2.5 x 2 cm. According to the internal examination of the body plura, right lung, pericardium, heart and liver were lacerated. The stomach was having semi digested rice and vegetables. The dead body of the deceased was found at the door of the village pradhan which was at the distance of about 300 paces from the place where the deceased has sustained gun shot injury. The condition of the deceased was so serious, he was not able to cover the distance of 300 paces, in fact the deceased had not sustained any injury as alleged by the prosecution. In support of the prosecution version P.W. 2 Vishal Ram, the son of the deceased, P.W. 1 Smt. Vimla Devi, the wife of the deceased have been examined as eye witnesses, both the witnesses are highly partisan, there is no independent witness to support the prosecution story. It is a case of dacoity which has been converted into the case of murder by the first informant and the recovery of the country made pistol allegedly used in the commission of the alleged offence has been planted. The injury sustained by the P.W. 1 either are self inflicted or were caused by during course of the dacoity. In such circumstances, the appellant may be released on bail.