RAJESH TIWARI Vs. STATE OF U P

JUDGEMENT

(1.) -This bail application arises out of Crime No. 990 of 2005, under Sections 147, 148, 149, 323 and 302, I.P.C., P.S. Kotwali, district Ghazipur. The applicant Rajesh Tiwari is the named accused in the aforesaid crime No. and he has applied for his bail through this bail application.

(2.) THE prosecution case in a nut shell are that the informant Sudama Singh was returning after appearing in B.A. admission test on a cycle alongwith Shailesh Singh and Uday Pratap Singh on 24.6.05 in the evening. On their way back Deepak Singh also joined them and all of them proceeded for their house. At 6.30 p.m. that day, when they reached near the general store of Lal Ji Tiwari all of a sudden Lal Ji Tiwari, Bridul Tiwari, Ram Ji Tiwari, Mantu Tiwari and Mukhtar Tiwari surrounded Deepak Singh, aforesaid, and started belabouring him because of an incident alleged to have taken place in the marriage procession 2 days prior to the said incident. When the informant Sudama Singh tried to intervene then Bridul Tiwari with bomb, Rahesh Tiwari and Mantu Tiwari with country made pistols attacked them. Hearing the commotion and hue and cry, Haridwar Singh, Munna Singh, Sureman Singh also reached on the spot and tried to pacify the scuffle. At this point Mantu alias Ramakant Tiwari, Rajesh Tiwari and Ram Ji Tiwari started firing and hurdled bomb. As a result of the said assault Sureman Singh, Munna Singh and Haridwar Singh sustained injuries. Injured were transported to the District Hospital, Ghazipur, where Sureman Singh were declared dead, and Haridwar Singh and Shiv Bahadur Singh were admitted in the hospital. Subsequently, Haridwar Singh also lost his life later on because of the sustained injuries in the incident on 26.5.2005. Sureman Singh, informant got an F.I.R. scribed from Padam Singh and lodged it at Police Station Kotwali, district Ghazipur as Crime No. 990 of 2005, under Sections 147, 148, 149, 323 and 302, I.P.C. THE said F.I.R. is Annexure-1 to the affidavit filed in support of this application. THE post mortem reports of Haridwar Singh and Sureman Singh (Annexures-5 and 6) indicates that both the deceased had sustained firearm injuries. THE injury report of injured Shiv Bahadur Singh, Deepak Kumar Singh, Haridwar Singh, Sujeet Kumar Singh and Pinku Singh (Annexure-6) indicates that these injured persons also sustained injuries by hard blunt object as well as firearm injuries. On the said facts, the applicant Rajesh Tiwari has applied for his bail after the same was rejected by the lower court vide it's order dated 30.8.2005 by Sessions Judge, Ghazipur.

(3.) LEARNED A.G.A., on the other hand, contended that in this case two persons have been shot dead in day light and five persons have received serious injuries. He submitted that the applicant does not have any right of private defence as the deceased and the prosecution side were unarmed and hence there was no right of private defence. He further contended that even according to the defence of the accused two deceased persons did not attack them and hence there was no question of right of private defence against the two deceased. He further submitted that the injury reports of the sole injured from the side of the accused indicate that his injuries were got manufactured and are simple in nature which are a result of fall and, therefore, prosecution is not obliged to explain them. He further contended that the place of incident in this case, according to the prosecution version itself is in front of general store and after the murder of two deceased, local people damaged the Maruti Van of accused Budul Tiwari because of the present crime committed by them.