RAJESH CHANDRA, J. - (1.) HEARD Sri I.K.Chaturvedi holding brief of learned Senior Counsel Sri Jagdish Singh Sengar on behalf of Krishna Kumar Tewari @ Munna, s/o Baldev Prasad Tiwari, r/o village Nairanapura, PS Kotwali, District Mahoba, learned AGA and perused the record.
(2.) THE court by order dated 17.9.04 had summoned the lower court record for fair and proper disposal of the bail application and had directed the office to list the case on 19.11.2004. The prayer for bail of the accused applicant was to be considered after receipt of the lower court record. The Record has been received from the court below hence prayer for bail is now being considered. It appears from record that an incident had taken place on 8.10.03 at about 8.15 PM in which Sri Arun Kumar Paliwal was killed near the PCO, which was being run by one Rajesh Chaturvedi near the Alha Chowk, Kasba Mahoba, District Mahoba. A report of the incident was lodged by Sri Ajay Kumar Paliwal, brother of the deceased at about 9.20 PM on the same day within an hour of the incident. The appellant Krishna Kumat Tewari has been convicted for life imprisonment, under Section 302 IPC in ST No.214/03, State of U.P. Vs. Krishn Kumat @ Munna Tewari, PS Kotwali Mahoba, District Mahoba.
(3.) THE contention of the counsel for the appellant is that there was no source of light at the place of incident; that deceased was taken to the hospital by one Narendra Kumar, a third person and not by the two prosecution witnesses of the incident who were related to the deceased and that post mortem report is inconsistent with the occular version of the prosecution witnesses as the version in the FIR regarding the seat of injury is contrary to the injury reported by the Doctor in the post mortem report. It is submitted that no independent witness was produced by the prosecution in support of its case; that motive is not proved; that the place of incident and the presence of the complainant at the place of incident is doubtful as the Investigating officer had not found blood on the spot and had not collected blood soaked soil to send it to chemical examiner to fix the place of incident. It is urged that there was no enmity between the accused and the deceased: It is stated that the deceased has been shot dead by some unknown assailants from the back from a distance which is clear from the injuries received by the deceased from the dispersal of the pellets. According to the version in the FIR the complainant and his brother Sri Arun Kumar Paliwal along with Kamlesh Verma and Pramod Kumar @ Babli were standing near the PCO of Rajesh Chaturvedi, near Alha Chowk, Mahoba at about 8.15 PM. They were talking amongst themselves when the appellant Krishna Kumar Tewari @ Munna, s/o Baldev Prasad Tewari came near them. He took out a country made pistol and fired on the left side of the chest of Sri Arun Kumar Paliwal due to old enmity. As a result of the firearm injury, Sri Arun Kumar Paliwal fell on the ground and was immediately taken to the District Hospital, Mahoba, where he was declared dead. It is also alleged in the FIR that the complainant and others had seen the appellant firing upon Sri Arun Kumar Paliwal, by which he received injuries resulting into his death. It is lastly submitted that the Investigating Officer had visited the place of occurrence on 8.10.03 itself but the inquest report was prepared on the next date at 7 AM which falsifies the whole case of the prosecution. Learned AGA has submitted that there was no denial of the factum of the incident. It is stated that the motive pales into insignificance when there are occular witnesses of the incident. Since the witnesses were present at the place of occurrence then neither the role of the appellant nor the place of incident can be said to be doubtful merely because the Investigating Officer did not take blood stained soil from the spot which also rules out involvement of any unknown person in the incident as the witnesses had seen the appellant firing upon Arun Kumar Paliwal.;