RAVINDRA SINGH,J. - (1.) THIS application is filed by the applicant Kailash Yadav with a prayer that he may be released on bail in case crime No. 1039 of 2005 under Sections 147/148/ 149/323/325/504 and 302 I.P.C. and 7th Criminal Law Amendment Act and 2/3 of the U.P. Gangster and Anti Social Activities(Prevention) Act P.S. Badagaon District Jhansi.
(2.) THE prosecution story in brief is that in the present case an F.I.R. has been lodged By Sri Bhagwat at P.S. Badagaon on 17 -9 -2004 at 9.15 am. in respect of the incident which had occurred on 17 -9 -2005 at about 6.30 p.m. The F.I.R. was lodged under Sections 147/148/149/323/325/504 and 302 I.P.C. and 7th Criminal Law Amendment Act but during investigation Section 2/3 of the U.P. Gangster and Anti Social Activities (Prevention) Act was added. It is alleged that on 17 -9 -2005 at about 6.30 p.m. the applicant and co -accused Ajay alias Buddhu came to the village Birguwan at that time the applicant was in a drunken condition, they hurled abuse, they were asked by the first informant and other not abuse then the co -accused Ajay started beating the first informant by lathi. On shouting of the first informant Jagdish Dubey and Tulsi Das and some other persons came at the place of occurrence. In the meantime the applicant called and on that call his brother Prakash Yadav, Rajendra Yadav and Ranjeet and Abhijeet son of Prakash Yadav came at the place of occurrence. The applicant was armed with rifle and co -accused Abhijeet was armed with D.B.B.L. gun and the remaining co -accused were armed with lathi and danda. All the accused persons caused injuries on the person of the injured Jagdish Dubey by using lathi and danda blows and at that time whoever came forward was also beaten by them. In the meantime the deceased Sant Ram came there from Jhansi and the accused persons ran towards the deceased Sant Ram. He ran to save his life. The applicant and co -accused Abhijeet discharged shot by their firearm when the deceased in the back of middle school. Consequently, he received gun shot injuries and died on the spot. Due to terror of the accused persons all the persons of the locality entered into their houses and closed the doors and shop keepers shut down the doors of their shops and ran away. A panic was created there. Thereafter, the accused persons left the place of occurrence. Heard Sri Satish Trivedi, Senior Advocate, assisted by Sri Vivek Shandilya and Sri Sudhir Shandilya and Sri R.K. Kaushik, learned Counsel for the applicant and the learned A.G.A.
(3.) IT is contended by the learned Counsel for the applicant (I) That according to the prosecution version itself the applicant was under intoxication of liquors and he was having no sense. (II) That the prosecution story is highly improbable even there is no motive for the applicant to commit the murder of the deceased. All of sudden he came there and firing was done at him. (III) That it is alleged that the applicant and the co -accused Abhijeet Singh fired at the deceased by their respective weapon when he was in the back of the middle school. After receiving the injuries he died but according to the cite plan, the place where the deceased was allegedly murdered is shown about 2 furlong from the middle school. (IV) That in the present case the F.I.R. is anti timed. It was not in existence at the time of preparation of the inquest report. According to the prosecution version the F.I.R. was lodged on 17 -9 -2005 at 9.15 p.m. but the proceedings of the inquest were initiated on 18 -9 -2005 at 7.30 a.m. There is no proper explanation for the delay in preparation of the inquest report. The name of the accused and their weapons are not named in the panchayatnama, which shows that at that time the name of the accused were not known. (V) That the prosecution story is not corroborated by the medical evidence because according to the post -mortem examination report 5 anti -mortem injuries were found in which injury Nos. 1,2 and 3 were lacerated wounds, injury No. 4 is a fire arm wound of entry, which was having tattooing and injury No. 5 is its exit wound. There is no explanation of lacerated wounds i.e. injury Nos. 1,2 and 3. Rigor mortis passed off from head and neck but it was present on the four limbs, which shows that the deceased died about 24 hours prior to the post -mortem examination. (VI) That according to the prosecution version the applicant was having rifle and other co -accused was having gun but the deceased had received only one firearm wound of entry. It has not been specified as to whose shot hit the deceased. The applicant was having no license of the rifle and during investigation the rifle used in the commission of the alleged offence has not been recovered from the possession of the applicant. (VII) That without any reason Section 2/3 of U.P. Gangster and Anti Social Activities(Prevention) Act has been added during investigation of this case. (VIII) That admittedly the applicant and co -accused Ajay have also received injuries in the said incident, which shows that the prosecution has not come with clean hands. (IX) That three persons namely Bhagwat, Ramesh and Mithila received injuries in the said incident. It was also alleged that one Jagdish Dubey was also beaten by lathi and danda but there is no medical examination report of Jagdish Dubey. (X) That according to the prosecution version, the firing was done at the deceased in running condition but the gun shot injury shows that it was caused from a close range, which belies the whole prosecution story. (XI) That the applicant is innocent and he has not committed the alleged offence and he has been falsely implicated in the said case due to ill will of the first informant. (XII) That the co -accused Abhijeet alias Abhijeet Singh who has allegedly fired at the deceased by D.B.B.L. gun has been released on bail by this Court on 10 -2 -2006 in criminal misc. bail application No. 2504 of 2005. The case of the applicant is on the same footing with the case of the co -accused. Therefore, he is also entitled to get the benefit of parity. ;