- (1.) HEARD parties counsel.
(2.) APPLICANT Anand is being prosecuted for committing the offence under Section 302, I. P. C. P. S. Niwari District Ghaziabad. According to the recital in the F. I. R. three persons viz. , applicant Anand, Satish and Ugar had come to the house of the first informant in the night of 8/9th April, 1991 and when her sister-in-law Smt. Sita had come out of the room, she caught hold Satish whereupon Anand had fired upon her. Not only this co- accused Ugar had given a spear blow to Smt. Sita as a result of which she fell down and died instantaneously. On a perusal of the copy of the post mortem report, it would appear that Smt. Sita had sustained one ante mortem injury a gun shot wound of entry 2 cm x 2 cm upon the right ear and there was a corresponding wound of exit upon the left side of the head. There was another post-mortem wound 6 cm x 6 cm muscle deep on the chest.
(3.) IT is also not disputed that Smt. Prabha had lodged the F. I. R. in which co-accused Satish was named as the first accused, but in the site plan prepared by the Investigating Officer, the crime in question has been referrer1 to as State v. Anand. Reliance has been placed upon a decision of the Supreme Court in Bandi Mallaiah and others v. State of Andhra Pradesh, 1980 SCC (Cr) 672. The Supreme Court has observed in the above cited case as under: "in each one of these requisitions, the Sub-Inspector had mentioned that the several injured persons were beaten by Golla Gopaiah and others with sticks. Now, if there was already a first information report in existence in which Bandi Mallaiah (A-1) had been named as the first accused and as the person who led the attack, surely the assailants would have been mentioned in the requisition as Bandi Mallaiah and others and not Golla Gopaiah ond others. This circumstance throws doubt upon the case of the prosecution that the first information report Ex. P. 1 was given at 10. 00 p. m. " Where the injuries are found upon the body of the deceased at the time of post mortem examination and one of them is found to be post mortem injury although the case of the first informant was that both the injuries were caused simultaneously and the deceased had fallen down after sustaining both the injuries and had died; and where the reference of the prime in the site plan is by the name of an accused, who was not named as first accused in the F. I. R. a case for bail is made out. These assertions shall have no bearing upon the learned Sessions Judge who will decide the case finally.;