R.C.DEEPAK, J. - (1.) SINCE both the appeals arise from the same judgment and prayer for bail in both of them were heard together, therefore, they are decided by a common order.
(2.) I have heard Sri P.N. Misra, learned Senior Counsel assisted by Sri Apul Misra, Sri S.P.S. Raghav and Sri D.R. Chaudhary, learned Counsel for the accused -appellants, Sri Viresh Misra, learned Senior Counsel assisted by Sri Amit Misra, Sri J.S. Sengar, Sri V.P. Srivastava and Sri Mayank Agarwal, learned counsels for the complainant, Sri M.L. Shukla, learned Additional Government Advocate for the State and perused the record. That the contentions raised by the learned Counsel for the accused -appellants are that the presence of the two eye -witnesses is wholly doubtful. The medical evidence is incompatible with the version specially the manner of assault and non -examination of any independent witness including the employees of Restaurant, whose presence was admitted to the informant. It is contended that all these inconsistencies referred to above lead to the conclusion clearly that the F.I.R. was not in existence at the time as alleged. P.W. 1 (Sarvesh Kumar) has his own sweet shop at a distance of 2 -1/2 kilometers from the alleged place of occurrence. His failure to give any specific reason for his presence for that day at the Restaurant adds strength to the above submission. The partition had already taken place between the deceased and the informant and M.I.T. contract stood exclusively with the name of the deceased (Vijay Kumar). The informant absolutely had nothing to do with it. These are the circumstances, which exclude his presence at the Restaurant. In this context, the non -examination of any employee of the Restaurant further corroborates the position.
(3.) THE medical conflict is also a very important factor in eliminating his presence at the spot. According to the informant two shots were fired from behind the victim by the accused persons. The deceased was sitting and the assailants were standing. One of the injuries i.e. injury No. 1 had shown a downward route. 15 pellets were recovered from the chest cavity, but the injury No. 2 shows rapture of the brain membrane and fracture of occipital bone. It clearly indicates that shot had travelled upwards. The entry wound is 2.5 cms. from the mid line on the back of the neck, so it had travelled transversely to the left occipital. The fracture otherwise ought not to be there in the circumstances discussed above. The second shot apparently was fired when the victim after receiving the first injury had fallen to the ground. The informant has nowhere stated so. According to him, the victim fell on his back after he received injuries.;