- (1.) HEARD Sri Viresh Misra, senior advocate assisted by Sri Satyaveer Singh, learned counsel for the applicant, learned A.G.A. for the State as well as Sri A.P. Tiwari, learned counsel for the complainant and perused the records.
(2.) LEARNED counsel for the applicant submitted that the deceased had a long criminal history of 10 cases and had many enemies. The incident took place on 4.8.2010 at 9:00 P.M. on highway where there was no source of light. Five persons, including the applicant, are alleged to have fired indiscriminately at Saneef (the deceased). All the accused are alleged to be armed with licensed and illicit firearms, but only two gunshot wounds of entry and one gunshot wound of exit were found on the dead body. Learned counsel for the applicant invited the attention of the Court towards the postmortem report wherein the injury no.1 is a gunshot wound of entry 3 cm. x 2.5 cm. right side neck with a corresponding G.S.W. of exit 13.5 cm. x 10 cm. at right side cheek lower jaw with fracture of mandible. The third injury is a G.S.W. of entry 3.2 cm. x 2.4 cm. x cavity deep on right shoulder. A metallic bullet was recovered from the wound. Learned counsel submits that injury no.2 is the exit wound of injury no.1. The exit wound is sized 13.5 cm. x 10 cm., which clearly indicates that injury no.1 was caused by a rifle shot, as it produced a very large exit wound. He further submits that injury no.3 i.e. the second entry wound, wherein bullet was found, could not be caused by a gun, but could have been caused by a tamancha or country made pistol of 315 bore. Learned counsel submits that in the FIR, weapons were not specified and only this much was mentioned that the accused were armed with licensed and unlicensed weapons. None of the accused was alleged to be armed with rifle. The applicant was not armed with a rifle, but is alleged to be armed with a pauniya (a gun with shortened barrel) and the said pauniya is alleged to have been recovered at the instance of the applicant.
(3.) THE contention is that none of the injuries was caused with a 12 bore weapon and, therefore, involvement of the applicant is highly suspicious. Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail and submitted that the deceased was a witness in a previous case under section 307 IPC, which was pending against the applicant and the co-accused and the deceased was attacked with intention to kill so that he may not give evidence. However, learned counsel for the complainant as well as learned A.G.A. admitted that the large exit wound clearly indicates that injury no.1 was caused by a rifle and the second entry wound was of 315 bore weapon and none of the entry wounds was caused by a 12 bore weapon. Both the entry wounds found on the dead body could not have been caused by a 12 bore gun or 12 bore country made pistol. A 12 bore shortened gun is said to have been used by the applicant and is allegedly recovered at his instance. Considering all the facts and circumstances of the case and the submissions advanced by learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail.;