RAVINDRA SINGH, J. - (1.) THIS application is filed by the applicant Mukesh Kumar with a prayer that he may be released on bail in case crime No. 240 of 2005 under Sections 147, 148, 149, 307, 302 I.P.C. P.S. Khutar, District Shahjahanpur.
(2.) THE prosecution story, in brief, is that an F.I.R. has been lodged by one Krishna Kumar at P.S. Khutar on 2 -8 -2005 at 9.45 p.m. in respect of the incident which had occurred 2 -8 -2005 at about 8.00 p.m. The distance of the police station was about 4.5 km from the place of occurrence. The F.I.R. was lodged against the applicant and 6 other co -accused persons. According to the F.I.R. there was election rivalry between the first informant and co -accused Babu Ram because the first informant and co -accused Babu Ram had contested the election of village Pradhan about 15 years back. In that election co -accused Babu Ram was defeated. And the first informant was elected. At the time of alleged occurrence the fresh election of village Pradhan was under process. That seat was reserved for woman, the nominations were filed by the wife of co -accused Babu Ram, the wife of the applicant, the wife of co -accused Jitendra and the wife of one Bhagwan Das. On 1 -8 -2005 the applicant and co -accused Bhagwan Das, Jitendra, Babu Ram, Ram Laraitey, Vimlesh and Kamlesh asked the first informant to withdraw the nomination of his wife and daughter -in -law because they had decided to elect the wife of the applicant as Pradhan, but the first informant replied that the wife of Harish Kumar will contest the election and the candidate who will get the highest vote will be declared elected. Thereafter the applicant and other co -accused persons extended threat on 2 -8 -2005 at about 8.00 p.m. The first informant, his sons deceased Harish Kumar, injured Shiv Kumar, injured Vikash Kumar and Anil Kumar who were returning to their houses after canvassing, when they reached their houses the applicant and other co -accused persons namely Bhagwan Das, Jitendra, Babu Ram, Ram Laraitey, Vimlesh armed with country made pistol and co -accused Kamlesh armed with lathi came there who were waiting and for a long period. The co -accused Bhagwan Das exhorted and he fired on the deceased Harish Kumar. The applicant fired at the injured Shiv Kumar. Thereafter, the accused persons fired indiscriminately and co -accused Kamlesh used lathi blows, consequently Harish Kumar, Shiv Kumar, first informant Krishna Kumar and Vikash received injuries. The first informant and other villagers made shouting, thereafter, the accused persons discharged the shots at their houses also. They created a terror and extended a threat not to say anything in respect of the incident. The first informant and all the injured persons were taken to the police station where the F.I.R. was lodged. Heard Sri Satish Trivedi Senior Advocate assisted by Sri Roshan Khan learned Counsel for the applicant and learned A.G.A. and Sri Manish Tiwari learned Counsel for the complainant.
(3.) IT is contended by the learned Counsel for the applicant : (i) That according to prosecution version the alleged occurrence had taken place in the dark hours of night at about 8.00 p.m. on 2 -8 -2005 and according to the F.I.R. except one co -accused all the accused persons discharged the shots. It was not possible for the witnesses to identify that whose shot hit the deceased and injured. (ii) That according to prosecution version it has been specifically alleged that the shots discharged by the applicant hit the injured Shiv Kumar and the shots discharged by the co -accused Bhagwan hit the deceased Harish Kumar. According to the prosecution version itself the applicant did not cause any injury on the person of the deceased. (iii) That the deceased had received only one fire -arm wound of entry. It was having blackening and tattooing and remaining injuries were lacerated wounds and one metallic bullet was recovered from brain matter. (iv) That according to the medical examination report of injured Shiv Kumar, who received one fire -arm wound of entry on the back no blackening and scorching was found, but tattooing was present around the wound and he has received contused swelling also. The dimension of the injury was 1 cm x .4 cm x depth not probed. The injury was kept under observation and advised for X -ray, but no X -ray report was available on the record to demonstrate the nature of injury. In the absence of the X -ray report the alleged injury would be simple in nature. In any manner it was not dangerous to life and the case of the applicant wound not travel beyond the purview of the Section 324 I.P.C. (v) That no source of light has been disclosed in the F.I.R. The alleged occurrence had taken place at about 8.00 p.m. when there was complete dark. (vi) That there is no independent witness of the village to support the prosecution story and witnesses were highly interested, partisan and inimical. (vii) That the applicant is young practising Advocate of District Shahjahanpur. He has never been prosecuted for any offence and there is no likely hood of his absconding or tampering with the evidence. (viii) That co -accused Jitendra, Vimlesh and Ram Laraitey who were armed with country made pistol have already been released on bail by the learned Sessions Judge, therefore, the applicant is also entitled for bail. ;