BIJENDRA Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri Satish Trivedi, Senior Advocate, assisted by Srt Roshan Khan, learned Counsel for the applicant, learned A.G.A. for the State and Sri Anurag Pathak, learned Counsel for the complainant.

(2.) The prosecution story, in brief, is that the First Information Report of this case has been lodged by Manoj Kumar at Police Station Titron on 22.9.2005 at 10.00 A.M. in respect of the incident which had occurred on 22.9.2005 at about 8.30 A.K. The First Inforrrat ion Report was lodged under Sections 147, 148, 149, 307, 323, 504 I.P.C. but on the same day at 11.30 A.M. Section 302 I.P.C. had been added. The distance of the Police Station was 8 Kl.mts. from the alleged place of the occurrence. The First Information Report was lodged against the applicant and seven other co-accused persons. It is alleged that there was a dispute over a Kuri. It is said that the applicant and other co-accused Narendra, Birendra, Ajay Kumar, Sunil Kumar, Chendra, Udaibeer and Kushal Pal @ Mintu lifted the Kuri of first informant. It was objected then accused persons have abused, they were asked not to abuse then co-accused Narendra, Ajay Kumar, Chandra, Udaibeer armed with the country made pistols, co-accused Birendra armed with gun , co-accused Sunil armed with Revolver and co-accused Bijendrs armed with Rifle discharged the shots with intention to commit the murder. Consequently Satish Kumar , Pradeep Kumar, Jaidrath Singh, Anil Kumar, Mukesh, Sandeep and Vinod received injuries. It is said that they became injured after receiving fire arm injuries and injuries caused by Lathi but subsequently the injured Satish Kumar and Pradeep Kumar died on the same day, therefore the case was converted under Section 302 I.P.C. Prom the perusal of the post-mortam examination report and the medical examination report the deceased Predeep Kumar has received one ante mortem injury i.e. gun shot wound of entry 1.00 c.m. x 1.00 c.m. x cavity deep on lower part of left side abdomen. The injury was having blackening and due to this injury there was a fracture in the left (sic) crest bone etc. and one metallic ballot was recovered from this wound. The deceased Satish Kumar had received two ante-mortam injuries i.e. (l) gunshotwound of entry 1.00 cm. x cavity deep on the left side front of chest, the injury was having blakening, one metallic bullot was recovered from this wound. (2) contused swelling 2.00 c.m.x 2.00 c.m. on lateral aspect of right side chest at midaxillary line, one metallic bullot was recovered. On opening, this wound was communicating to injury No. l and the injured Jaidrath Singh had received a multiple pellots fire arm wound. Injured Mukesh was having two injuries, injury No. 1 lacerated wound and injury No. 2 was red abrasion. Injured Sandeep was having multiple pellets wound. Injured Anil was having lacerated wound and Injured Vinod was having pellets wound and injured Manoj Kumar was having Traumatic swelling. During investigation the first informant stated that the co-accused Narendra, Birendre, Sunil, Ajay Kumar, Chandra , Udaiveer discharged the shots by their respective weapons and co-accused Kushal Pal caused injury by using Lathi. It is contended by the learned Counsel for the applicant that according to the First Information Report eight persons fired by their respective weapons. According to the statement of the first informant and other witnesses seven persons discharged the shots, consequently the deceased and injured persons have received injuries but each deceased has one gun shot wound of entry and the dimension of both the injuries is the same i.e. 1.00 c.m. x 1.00 c.m. x cavity deep but it has not been specifically alleged that whose shot hit the deceased. There is general role of firing against the applicant and other co-accused persons. It is further contended that according to the prosecution vision, co-accused Narendra, Ajay Kumar, Udaibeer and Chandra were armed with country trade pistols and co-accused Bijendra was anted with gun and co-accused Sunil was armed with the revolver and the applicant was armed with rifle but considering the case of other co-accused namely Ajay Kumar, Narendra and Chandra @ Chandra Pal who have been shown armed with the country made pistol have been released on bail by this Court on 10.2.2006 in Crl.Misc. Bail Application No. 180 of 2006, on 5.4.2006 in Crl. Misc. Bail Application No. 6365 of 2006 and on 13.4.2006 in Crl. Misc. Bail Application No. 6922 of 2006 respectively by observing that the injuries of the deceased appear to have been caused either by rifle or revolver as the bullots were found embedded .

(3.) It is contended by the learned Counsel for the applicant that there is no standard of country made pistol. The injuries of the deceased have been definitely caused by the country made pistol because the shots discharged by the country made pistol do not have a high force and velocity as the shots discharged by the rifle. In case any shot is discharged by a rifle from a close range, it will have a exit wound but in the present case ante-mortam injury of deceased Pradeep Kumar was having blackening but it was not having exit wound, it shows that it was not caused by the rifle. It was caused by country made pistol from a close range and the ante-mortam injury of the deceased Satish Kumar was also having the blackening, only having exit wound. It was also not caused by the rifle, it all would have been caused by country made pistol all the co-accused have shown armed with country made pistol as mentioned above, have been released on bail by this Court, therefore the applicant is also entitled to get the benefit of parity because the case of the applicant is on the better footing than with above-mentioned co-accused persons, because the applicant was shown armed with rifle, neither the deceased nor any injured had received any rifle injury.