RAM SURESH Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. Ram Suresh applicant has filed this bail application under Section 439 Cr. PC. seeking his release in Crime No. 230 of 2005, under Sections 302/504 IPC and Section 3 (2) (5) SC/st Act, P. S. Girwan, District Banda. His bail prayer has been rejected by both the Courts below and the bail rejection order dated 13-2-2006, passed by of the special Judge, SC/st Act, Banda has been filed as Annexure 4 to this bail application.

(2.) THE prosecution allegations, as is perceptable from the FIR (Annexure 1) are that the informant Babu Lal had two sons Ashok and Naresh who used to help the poor and downtrodden. Ram Suresh Yadav (the present applicant) a co-villager is an anti-social element who indulge into assault to show his muscle power and used to oppose the aforesaid sons Ashok and Naresh. On 26-10-2005 Naresh aforesaid was returning from his field at 3. 30 p. m. , when he was surrounded by Ram Suresh Yadav (present applicant), Bachha Yadav, Arvind Yadav and one more person armed with country made pistol and lathies near the house of Prajapati, vituperising by caste abuses. Naresh raised hue and cry, which attracted the informant Babu Lal and his son Ashok. Naresh no sooner also took to his heals towards the informant his father, but unfortunately fell down in the way because of the bamboo wooden kept in the way. Ram Suresh, the applicant, shot at Naresh from his country made pistol and rest of the three assailants belaboured him with lathi. THE present applicant Ram Suresh also made two other shots as well. This incident was witnesses by many co-villagers and neighbours. Naresh was rushed to the District Hospital Banda soon after the incident, from where he was referred to Kanpur. THE informant got the FIR scribed from Badri vishal Trivedi and after covering a distanced of 8 km. lodged it on the same day at 9. 30 a. m. as Crime No. 230/05, under Section 307/504 IPC and Section 3 (2) (5) SC/st Act, P. S. Girwan, District Banda. Subsequently, injured Naresh lost his life and therefore, the offence was converted under Section 302 IPC. THE post-mortem report (Annexure 3) of the deceased dated 29-10-2005 indicates that he had sustained two injuries and the cause of his death was haemorrhage and shock due to ante- mortem injuries. He has sustained the fracture of temporal and parietal bone and his membranes were lacerated.

(3.) THIS statement of the doctor was given to the police on 23-1- 2006. Dr. Vaswani was noticed by this Court on 10-8-2006 to show cause why he should not be declared to be unfit for State Medical Health Service and be not removed from service. 8-9-2006 was the date fixed for his personal appearance in this Court. Dr. Vaswani had put his appearance in the Court and he has filed counter-affidavit through Sri Sushil Chandra Srivastava Advocate on 28-9-2006. In Counter Affidavit Dr. Vaswani aforesaid has stated in para 9 that "the injury report was prepared by me on the basis what ever he found medically examined Suresh and not in a bad or ill motive. " It is also stated in the said paragraph " it is made clear that Dr. Vaswani has not given any statement before the I. O. and has not mentioned the gun-shot injury at the instance of prosecution. " THIS paragraph is sweared on his personal knowledge. Dr. Vaswani has also filed a supplementary counter-affidavit. In para 8 of the said supplementary counter-affidavit he has admitting giving the statement to the I. O. but given an explanation that the I. O. had recorded the statement of the deponent in his own version, which suits prosecution story. He further testified that he never stated before the I. O. that above mentioned gun-shot wound was mentioned at the instance of people present at the time of preparation of injury report. He has further testified that no X-Ray was got done by the injured and that there was a possibility that medical officer performing post-mortem may have missed bullets as often happens. In para 16 of the supplementary counter-affidavit Dr. Vaswani has reiterated that he has never given any statement as recorded by the I. O. In para 17 of the said supplementary affidavit, Dr. Vaswani has denied giving any statement to the I. O. under Section 161 Cr. PC. the same averment has been reiterated of para 21 of the supplementary affidavit.