BAL DEV SINGH Vs. STAE OF U P

JUDGEMENT

(1.) HEARD Sri V. P. Srivastava, Senior Advocate assisted by Sri Pradeep Singh and Sri S.B.Singh, learned counsel for the appellants, learned A.G.A. for the State of U.P. and perused the lower court record.

(2.) THE appellant Bal Dev Singh and Paramjeet Singh have preferred the Criminal Appeal No. 5161 of 2013 and the appellant Kul Vir Singh @ Soni has preferred the Criminal Appeal No. 5646 of 2013 against the judgement and order dated 5.10.2013 passed by learned Addl. Sessions Judge, Court No. 3, Rampur in S.T. No. 159 of 2012 connected with S.T. No. 404 of 2012 and 160 of 2012 whereby they have been convicted. All the appellants in their respective appeals have moved the bail applications with the prayer that they may be released on bail during the pendency of their appeals, therefore, both the bail applications are being disposed of by a common order.

(3.) HAVING heard learned counsel for the appellants, learned A.G.A. and from the perusal of the records it reveals that the FIR of this case has been lodged by P.W. 1 Balvinder Singh on 7.8.2011 at 6.55 P.M. in respect of the incident allegedly occurred on 7.8.2011 at about 5.40 P.M. in which all the three appellants have been named as accused. It is alleged that on 7.8.2011 at about 5.40 P.M. the deceased Preetam Singh was returning to his house on a motorcycle No. U.P. 22N -7018, he was followed by the first informant and his maternal uncle Darbara Singh, when the deceased reached to Khapriya Shamshabad where the appellants were already standing, with them there was old enmity, they intercepted the deceased and discharged the shots indiscriminately by their pistols consequently the deceased after sustaining the injuries fell down. The first informant, his maternal uncle Darbara Singh and Guruvinder Pal Singh @ Goldi came to the place of the incident, they exhorted the accused persons then the appellants fled away by riding on unnumbered motorcycle, the deceased died instantaneously. According to the post mortem examination report the deceased had sustained 18 ante mortem injuries in which injuries No. 1,2,3,4,5,6,7,9,11,13,15 and 17 fire arm wounds of entry and the injuries no. 8.10,12,14,16 and 18 were fire arms wounds of exit. The fire arm wounds of entry were having the blackening. From the place of the incident three empty cartridges were recovered. At the stage of the trial eight witnesses have been examined, thereafter the statements of the appellants have been recorded under section 313 Cr.P.C. According to the deposition of P.W. 1 Balvinder Singh, he, his maternal uncle Darabara Singh and Guruvinder Pal Singh @ Goldi came at the place of the incident. According to his deposition, all the three appellants discharged the shots indiscriminately causing the injuries to the deceased. The appellants were exhorted then they fled away by riding on a motorcycle. He has supported the prosecution story in his examination -in -chief but in his cross -examination he debarred on 29.8.2012. Again his statement had been recorded on 3.12.2012 which shows that his examination -in -chief is again recorded. Again his cross examination was debarred and his cross examination was made on 21.1.2013 in which he stated that he reached at the place of the incident, the crowd was came there, the appellants were also reached their, somebody given the message on telephone then he reached and saw the dead body of his brother. His maternal uncle Darbara Singh came at the place of the incident after commission of the alleged offence. Till the preparation of the inquest report the names of the accused persons was not disclosed. He stated in the court by saying the appellants that they had not committed the murder of his brother and they were not seen at the place of the incident. According to the deposition of P.W. 2 Guruvinder Singh he did not support the prosecution story in examination -in -chief itself by submitting that he had not seen the deceased when he was succumbed and giving the dying declaration before him and he has not recorded any dying declaration of the deceased. Thereafter the P.W. 2 was declared hostile. According to the deposition of P.W. 4 Darabara Singh he did not support the prosecution story even in his examination -in -chief, he stated that his statement has not been recorded by the I.O., therefore, he was also declared hostile. The remaining witnesses examined before the trial court were of the formal in nature. The trial court has relied upon the examination chief of P.W. 1 and exhibits Ka 4 and 5 i.e. the statements of P.W. 1 and P.W. 4 with regard to the dying declaration of the deceased made before them, the same has been proved by the I.O. but it has not been proved by P.W. 2 and P.W. 4. In such circumstances, the appellants are entitled for bail.