- (1.) THE prayer for bail in these connected appeals is being considered and disposed of by means of this common order.
(2.) HEARD learned counsel for the appellants, learned counsel for the complainant and learned A.G.A. for the State. Learned counsel for the appellants submits that there was no light at the time of incident. P.W. 8 Dr. Ashutosh Kumar Upadhyay has stated in cross examination that the injuries were not of fire arm and P.W. 7 Dr. Shiv Shanker Pandey who had conducted the post mortem also stated that the injuries on the body of the deceased were not of fire arm. The dying declaration of the deceased Ashok Kumar Yadav is not reliable because there is no certificate appended to the dying declaration that the deceased was in a fit condition to give a dying declaration. In the counter arguments learned counsel for the complainant as well as learned A.G.A. submit that there was sufficient light at the time of incident because to shoot the deceased causing injuries to him some light is required. Moreover it is mentioned that an inverter was burning. No question or suggestion has been given to the witness that the inverter has been switched off, when the shutter of the clinic was brought down. So far as the present appellant Mahendra Yadav is concerned a clear role of firing has been assigned to him both in the dying declaration as well as in the evidence of P.W. 1 Ajay Nath Yadav, father of the deceased. The Judge has observed that C.W. 1 Dr. T.N. Verma has stated that the injuries were through and through. It is well settled that the testimony of the eye witness prevails over the medical evidence in the event of inconsistency. There is no reason to disbelieve the dying declaration. The tehsildar has mentioned in the evidence that the doctor has stated that the deceased was mentally fit to give a dying declaration although he had inadvertently omitted to get a certificate of fitness appended by the doctor.
(3.) CONSIDERING all the aspects of the case and without expressing any opinion as to the merits of the case, we are of the view that no case for bail is made out in favour of the applicant Mahendra Yadav, Consequently, the prayer for bail of the applicant Mahendra Yadav is hereby rejected. So far as appellant Ravindra Yadav is concerned as causing the fatal fire arm injuries is not attributed to him, we are of the view that he should be released on bail. Let the appellant Ravindra Yadav convicted in S.T. No. 105 of 2006, under section 302/34 IPC and 25 Arms Act, P.S. Bhadohi, District Sant Ravidas Nagar (Bhadohi) be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned. However, the hearing of the appeal is expedited. Office is directed to prepare the paper book expeditiously and list the appeal thereafter for hearing.;