SUBHASH Vs. STATE OF U P

JUDGEMENT

(1.) RAVINDRA Singh, J. This application is filed by the applicant Subhash Chandra with a prayer that he may be released on bail in Case Crime No. 68 of 2005, under Sections 302, 307, I. P. C. , Police Station Achhalda, District Auraiya.

(2.) THE prosecution story, in brief, is that a First Information Report has been lodged by Manmohan at Police Station. Achhalda on 11-11-2005 at 9-50 a. m. in respect of an incident which had occurred on 11- 11-2005 at about 9. 00 p. m. in the vicinity of the Mohalla Hariganj, Achhalda, Police Station was at a distance of about 1/2 kl. mt. from the alleged place of the occurrence. THE First Information Report was lodged against the applicant and co-accused Rajesh @ Bunti, Shiv Veer and Hakim Singh. According to the First Information Report Smt. Santoshi Devi, wife of the deceased and the wife of the applicant had contested the election of the village Pradhan in which the wife of the deceased was elected. From the election of the village Pradhan the applicant and other co-accused persons became inimical with the deceased. On 11-11-2006, the first information, the real brother of the deceased and the deceased were going to their house from the market, when they crossed the railway crossing, they were surrounded by the applicant and three other co-accused persons. THE applicant was armed with gun, co-accused Rajesh @ Bunty was armed with pistol, co-accused Shiv Veer was armed with country made pistol and co- accused Hakim Singh was armed with revolver. Co-accused Rajesh @ Bunty son of the applicant discharged a shot by the pistol which hit on the head of the deceased. THEreafter all the four accused persons including the applicant fired many shots. Consequently the deceased received injuries and died on the spot but luckly the first informant did not receive any injury, the alleged occurrence had taken place at about 9. 00 p. m. THE applicant and other co-accused persons were identified in the electric light. It was witnessed by Rajeev and Mukesh and all the accused persons showing their weapons, went towards the railway line after committing the murder of the deceased. THE first informant went to the Police Station and lodged the First Information Report.

(3.) IT is opposed by learned A. G. A. by submitting that in the present case the First Information Report was promptly lodged. There is no inconsistency in the inquest report because it was prepared since 11. 40 p. m. on 11-11-2005 to 10. 50 a. m. on 12-11-2005 and in inquest report case crime No. 68 of 2005 under Sections 307/302 I. P. C. is clearly mentioned the time of the First Information Report as 9. 50 p. m. on 11-11-2005. IT is clearly mentioned that the deceased had received injuries caused by the fire-arm. The time of the occurrence is 9. 00 p. m. and the time of the First Information Report is 9. 50 p. m. is clearly mentioned in the Challan Nass (Police Form No. 13) : (i) The alleged occurrence had taken place in market were the electric light was available. The presence of the first informant was not doubtful because the First Information Report was promptly lodged luckly he could not receive any injury. The prosecution story is wholly corroborated by the medical evidence because the deceased had received five fire-arm wound of entries and two exit wounds. The other injuries are either abrasion or contusion, it may be caused at the time of the commission of the alleged offence. The applicant was armed with gun. In gun also different types of the cartridges either factory made or country made are used, therefore, it cannot be said that if any cartridge is used in the gun, it will have the dispersal of the pallets and on the basis of the dimension of the injury it cannot be definitely said that it was caused by particular type of weapon. The presence of the witnesses at the alleged place of the occurrence is not doubtful and at the time of the spot inspection six empty cartridges of brass and two bullets of 315 bore were recovered. IT indicates that the different types of the weapons were used in the commission of the offence. Even on the basis of the recovery of the cartridges no definite conclusion can be drawn in respect of the use of the weapons.