PRADEEP KUMAR SINGH BAGHEL, J. - (1.) THIS is first bail application of Guddu Maurya @ Sunil Maurya and Sami Nath Mallah under section 398 (1) of Criminal Procedure Code in Criminal Appeal No. 821 of 2012. Both the appellants stood convicted under sections 302/148/149 IPC and section 7 of Criminal Law Amendment Act for life imprisonment and fine of Rs. 10,000/-. The appellants along with other accused were put up for trial before the Additional Sessions Judge, Mau in ST No. 245 of 2006.
(2.) THE prosecution case in brief is that on 11.5.2006 at 7 a.m. the informant, Jai Prakash Singh along with Praveen Kumar Singh were present at the spot of the occurrence when his elder brother Om Prakash Singh was shot dead by the appellants along with other accused. THE incident occurred at the bank of Tons river. THE details of the facts have been unfolded in the First Information Report which was instantly lodged after an hour at about 8 a.m. by the informant Jai Prakash against six persons namely 1) Swami Nath Mallah, (2) Sushil Chaurasia, (3) Jalandhar Mallah @ Jaylendra, (4) Ram Janam Chauhan, (5) Guddu Maurya and (6) Param Hans Singh. Informant in the First Information Report has stated that his elder brother Om Prakash Singh was engaged in the business of sand and on the date of occurrence he was present along with his brother and Praveen Kumar. In respect of the said business there was animosity between his brother and Pa- ram Hans Singh, Sushil Chaurasia, Jalandhar Mallah @ Jaylendra, Ram Janam Chauhan, Guddu Maurya and Swami Nath Mallah. THEy wanted that his brother Om Prakash Singh the deceased should not do the business of the sand in the same area. On 11.5. 2008 at about 7 a.m. all the afore mentioned persons armed with the country made pistols surrounded his brother and after abusing him they fired on his brother with their country made pistols on the exhortation of Swami Nath Mallah. His brother was fatally injured. After committing the crime all the accused fled from the spot. On 11.5.2006 autopsy of the deceased Om Prakash Singh was conducted by Dr. Ajit Kumar Singh. The post mortem report mentions "cause of death due to ante mortem fire arm injuries" in the said report two bullet injuries have also been mentioned. The investigation was entrusted to Jalodhar Yadav PW-7. He prepared the site plan which is Ex.Ka-10 on the record. The sample of the blood which was found at the spot of the occurrence was also taken which is Ex.Ka-11 and an empty cartridge was also found at the spot which is Ex.Ka-12. The police arrested Sushil Kumar Chaurasia, Ram Janam Chauhan and Guddu Maurya and on their search a country made pistol of 315 bore along with live cartridge was recovered from Sushil Kunar Chaurasia. A separate criminal case No. 532 of 2006 under section 25 Arms Act was registered. On 24.5.2006 another country made pistol of 315 bore was recovered from accused Jalandhar Mallah.
(3.) IT is the case of the prosecution that Jalandhar Mallah had admitted during investigation that he had caused injury by knife on the deceased Om Prakash Singh. After the crime he had thrown the knife in the river Tones. However, he could not point out the exact place where he had thrown the said knife after the crime and as such it could not be recovered. All the accused were put up for the trial and all three cases ST No. 245 of 2006 in Case Crime No. 295 of 2006 State v. Sushil Kumar Chaurasia under sections 147/148/149/302/504/506 and 120-B IPC read with section 7 of Criminal Law Amendment Act, ST No. 246 of 2006 in Case Crime No. 532 of 2006 State v. Sushil Kumar Chaurasia under section 25 of Arms Act and ST No. 247 in Case Crime No. 332 of 2006 State v. Jalandhar Mallah @ Jaylendra under section 25 of Arms Act were tried and decided by a common judgment of the Additional Sessions Judge, Mau by means of a judgment and order dated 8.2.2012. All the accused were found guilty under the different sections. Only one of the accused Param Hans Singh against whom charge-sheet was filed under section 120-B IPC was acquitted and given the benefit of doubt. The accused aggrieved by the judgment and order dated 8.2.2012 passed by the Additional Sessions Judge, Mau filed two separate Criminal Appeals under section 374 (2) Cr.PC and Criminal Appeal No. 821 of 2012 by Guddu Maurya and Swami Nath Mallah appellants in the present Bail Application and Ram Janam Chauhan filed a separate Criminal Appeal No. 1010 of 2012. We have heard learned Counsel for the appellants Dr. S.B. Singh and learned AGA. Counsel for the appellants submitted that from the post mortem report it is evident that there was a an incised cut wound, 16 cm x 1 cm, muscle deep, from the left ear to right ear at the thyroid level of the deceased Om Prakash Singh. However, none of the witnesses of the prosecution have mentioned the said wound in their depositions. Thus the prosecution has failed to prove as to how the incised cut wound had been caused as there was no allegation against the appellants that they had caused the said wound. He had further submitted that from the evidence of Dr. Ajit Kumar Singh PW-6 it is clear that the time of the death was around 2.30 a.m. since semi digested food was found, thus it was highly improbable that incident had taken place at 7 a.m. He had lastly submitted that all the witnesses of the prosecution were interested witnesses as PW-1 Jai Prakash Singh was the real brother and the PW-2 Praveen Kumar was the close friend of the informant Jai Prakash Singh.;