- (1.) VINOD Prasad, J. Heard Sri Vinay Saran Advocate on behalf of the applicant, Sri Alok Sharma learned Counsel for the informant as well as learned A. G. A. in opposition.
(2.) THE applicant seeks bail in crime No. 177 of 2005, under Sections 302, 504, 506 I. P. C. , Police Station Madnapur, District Shahjahanpur. The prosecution allegations against the applicant are that the applicant at 8. 30 a. m. alongwith his brother Devendra @ Munna, Ram Dayal, Ramanand, all armed with countrymade pistol, came to the house of the informant Dhramveer son of Rameshwar Dayal and started vituparsing his father Rameshwar Dayal because of the pending land litigation. The malefactors dragged Rameshwar Dayal from his house and forcibly took him in the gallery of the house which was resisted by his wife Geeta Devi, his brother Narveer and his wife Suman Devi. Pushing the deceased in the gallery of their house the present applicant shot dead Rameshwar Dayal. Besides eye-witness this incident was allegedly witnessed by the neighbours also which had occurred on 26-7-2005 at 8. 30 p. m. The report of the incident was lodged at the police station Madnapur same day at 12. 05 p. m. by the informant Dharamveer covering a distance of 8 Kilometers. The post-mortem report of the deceased dated 27- 7- 2005 indicate that he had received a single gun shot injury with two abrasions. On these facts the applicant has applied for his bail to this Court after the same was rejected by Sessions Judge, Shahjahanpur on 3-1-2006. Learned Counsel for the applicant contended that the prosecution case is absolutely false and infact because of the admitted land enmity and litigation the deceased entered into the house of the applicant and tried to molest Smt. Kanti Devi the mother of the applicant. Meanwhile, Devendra Kumar @ Munna the co-accused reached the house and heard the shrieks of his mother. He entered in the house and saw the deceased trying to molest his mother after empowering her and his mother was resisting and fluttering to get freed from beneath the deceased and was shrieking for help. Devendra Kumar to save the honour of this mother from the clutches of the deceased pulled him away on which the deceased picked up his countrymade pistol and in the ensued scuffle the deceased received the fatal gunshot injury. He further contended that Devendra Kumar on 29-7-2005 had filed an application to S. P. Shahjahanpur with the aforesaid contents. The copy of the aforesaid application has been filed as Annexure SA-1 to the supplementary affidavit along with the registry receipt. Learned Counsel for the applicant further contended that the inquest report of the deceased indicate that the deceased was wearing only an underwear and he was all nacked above waist. He further submitted that there was no dragging mark on the body of the deceased which belies the prosecution allegation of dragging and the two abrasions are result of scuffle between him and Devendra Kumar. He further contended that if the four accused were armed with fire-arm there was no reason for them to drag to the deceased to their house and commit the murder to get themselves implicated in the murder case and the accused would have shot dead the deceased where he was working. He further contended that the very fact that the deceased was in underwear and that his body was found inside the house of the applicant is sufficient to show that the defence of the applicant is correct. He also argued that the applicant does not have any criminal history nor he is likely to abscond and tamper with prosecution witnesses and before the said incident the applicant had not done any thing against the deceased and thus for him there was no occasion or special reason to commit the murder on that day.
(3.) LEARNED A. G. A. as well as learned Counsel for the applicant contended that it was the applicant who had shot dead the deceased because of pending litigation. They further contended that there is an eye- witness account of the said incident which took place in daylight inside the house of the applicant and the defence of the applicant is false even though they did not dispute filing of Annexure SA-1 by Devendra Kumar. I have considered the rival submission raised at the bar. No doubt it is a day light incident and the deceased had received a single gunshot wound from point black range. No other dragging mark has been found on the body of the deceased. There was no other clothes except the underwear worn by the deceased and at this stage it cannot be said that the defence of Devendra @ Munna mentioning therein that the deceased received injury in the scuffle with him because he was trying to molest his mother cannot be said to be absolutely absurd as nobody would like to level allegation of molestation on his own mother. Moreover I also do not find any reason to drag the deceased to one's own house to commit murder to make a full proof case against him which could have been committed at the house of the deceased itself in a spur of moment.;