- (1.) HEARD Sri Prashant Kumar Singh, learned counsel for the applicants, learned A.G.A. for the State of U.P. Sri Rakesh Dubey, learned counsel for the complainant and perused the record.
(2.) THIS bail application has been filed by the applicants Ram Ji Tiwari and Kripa Shanker Tiwari with a prayer that they may be released on bail in case crime No. 264 of 2011 under sections 304, 323, 504 IPC, P.S. Bidhnu, District Kanpur Nagar. The facts in brief of this case are that NCR has been lodged by Sri Harbhajan Tiwari on 15.6.2011 at 3.30 P.M. in respect of the incident allegedly occurred on 15.6.2011 at about 7.30 A.M. The applicants and three other co-accused persons are named in the FIR. It is alleged that on 15.6.2011 at about 7.30 A.M. the first informant was going to his field after taking the dungheap. In the meantime the applicants and other co-accused persons hurdled the abuses and did the maarpeet with the deceased Guru Prasad Tiwari, he was badly beaten by using the lathi blows. He was taken to C.H.C. Bidhnu from there he was referred to Hallot Hospital, Kanpur, subsequently the deceased succumbed to his injuries on 16.6.2011 at 5 A.M. According to the post mortem examination report the deceased had sustained two ante mortem injuries in with injury No. 1 was contused swelling as well as on the right side of the tempo parietal region and injury No. 2 was contusion on the left side of scull. Cause of death was comma as a result of ante mortem head injuries. The applicants applied for bail before learned Sessions Judge, Kanpur Nagar who rejected the same on 16.7.2011. It is contended by learned counsel for the applicants that according to the prosecution version the applicants and three other co-accused persons caused injuries by using the lathi blows. The alleged occurrence had taken place in a sudden quarrel, it was not pre intended. According to the post mortem examination report the deceased had sustained only two injuries, it has not been specified as to whose blow caused the above mentioned injuries. The the presence of the witnesses at the alleged place of occurrence was highly doubtful. There is no dying declaration of the deceased. There is cross version also. From the side of the applicant also one person had sustained injuries.. Smt. Vimla Devi the mother of the applicant No. 1 has moved the application under section 156(3) Cr.P.C., the same has been allowed and officer Incharge of the police station concerned has been directed to register the case and investigate the same. In the said incident the applicant No. 1 had sustained injury, the same has not been explained. According to the medical examination report the injuries of the applicant Ram Ji Tiwari were examined on 15.6.2011 at 1.50 P.M. At this stage it is very difficult to ascertain as to which of the party was aggressor. The applicant Ram Ji Tiwari had sustained four injuries in which injury No. 1 was contusion on the left side soldier, injury No. 2 was contusion on left fore arm, injury No. 3 was abraded contusion on the left thigh and injury No. 4 was incised wound on the right fore arm. The injuries were fresh and simple in nature. Prior to commission of the alleged incident the applicant no. 1 Ram Ji Tiwari and Ram Autar were nominated in a cross case crime No. 264-A of 2011 under sections 325, 504, 506 IPC, P.S. Bidhnu, District Kanpur Nagar. The applicants are in jail since 26.6.2011 and the co-accused Ram Autar Tiwari whose case was based on the same footing with the case of the applicants has been released on bail by learned Sessions Judge, Kanpur Nagar on 5.7.2011, therefore, the applicant may also be released on bail. In reply of the above contention, it is submitted by learned A.G.A. and learned counsel for the complainant that in the present case the allegation has been made against the applicants and three other co-accused persons that they caused injuries on the person of the deceased by using the lathi blows. The deceased had sustained two injuries on the head. Both the injuries were having in long bone fractures. The injuries were fatal. The cross case does not appear to be genuine because according to the prosecution version the alleged occurrence has taken place at about 7.30 A.M. but according to the medical examination report of applicant No. 1 he was medically examined on 15.6.2011 at 1.50 P.M. The injury No. 3 was on the non vital part of the body, simple in nature, the duration was fresh. The admission slip issued by KPM hospital, Kanpur in the name of Ram Ji Tiwari shows that he was aged about 23 years whereas the medical examination report dated 15.6.2011 at 1.50 P.M. shows that his age was about 32 years. It shows that these papers are either not genuine or perverse one, no reliance can be placed on the medical examination report of the applicant no. 1. In case the applicants are released on bail, they may tamper with the evidence. The benefit of parity with the co-accused Ram Autar may not be extended to the applicant because he has been released on bail by learned Sessions Judge on the ground of old age.
(3.) CONSIDERING the submission, made by learned counsel for the applicants, learned A.G.A., learned counsel for the complainant and from the perusal of the record it appears that in the said incident the deceased had sustained two injuries on his head, both the injuries were having the bone fracture and the applicants are in jail since 26.6.2011. The benefit of the parity with the co-accused Ram Autar may not be extended to the applicants because he has been released on bail by learned Sessions Judge on the ground of old age. At this stage the applicants are not entitled for bail. The prayer for bail is refused. Accordingly this application is dismissed.;