- (1.) SHIV Shanker, J.- This is the first bail application moved on behalf of the applicant (accused) Ravi Yadav s/o Rajveer Singh @ Raju in case crime No. 42 of 2006, under Sections 307 and 302 I. P. C. , P. S. Kotwali Sikandra Rau, District Hathras.
(2.) BRIEF facts of this case according to F. I. R. is that Abhishek s/o Virendra Vashney, first informant and his father were sitting on their shop on 27-1-2006 as usual at about 11. 30 a. m. Accused person Ravi Yadav armed with rifle and his two companions armed with gun and country-made pistol reached at the shop of first informant and all the three assailants opened fire upon them. Consequently, father of the first informant sustained fire-arm injuries on his left side chest. They fled away from the place of occurrence. Accused Ravi Yadav is the relative of Smt. Veena Yadav w/o Suresh Yadav. There was enmity between first party and Veena Yadav regarding shop, due to this reason she got murdered the deceased by Ravi Yadav and his two other companions. First information report was lodged by him on 31-1-2006 at 11. 45 a. m. against above three accused persons. Heard Sri Brijesh Sahai, learned Counsel for the applicant and learned A. G. A. as well as learned Counsel for the complainant and perused the whole record. It is contended by learned Counsel for the applicant that F. I. R. had been lodged after four days of the alleged occurrence and no sufficient explanation has been given. According to the version of the F. I. R. , there was enmity with one Smt. Veena Yadav how the present applicant could commit the murder of the deceased. Present applicant alongwith two unknown persons have been nominated as the assailants. This shows that the assailants were allegedly taken on hire to commit the murder of the deceased. Therefore, known person, who is present applicant how could reach alongwith unknown without covering his face at the place of occurrence. It is further contended that injured was alive 14 days, however, his statement under Section 161 Cr. P. C. was not recorded by I. O. His dying declaration was also not recorded by any authority while he was not unconscious. It is further contended that F. I. R. is not encyclopedia but it has been lodged by other parties just like to involve in another case NSA etc. Therefore, several facts mentioned in the F. I. R could not be mentioned by first informant. This shows that it was prepared at the dictation of police. In the present case post-mortem has already been conducted. Thereafter, F. I. R. was lodged. In such circumstances, according to ante mortem fire-arm injuries, three shooters have been chosen in the F. I. R. There was no direct dispute of the present applicant. Therefore, he could not commit the murder of the deceased. Learned A. G. A. has opposed the bail application.
(3.) THIS occurrence had allegedly taken place on 27-1-2006 at about 11. 30 a. m. and F. I. R. was lodged by first informant on 31-1-2006 at 11. 45 a. m. Therefore, it was lodged after four days of the alleged occurrence. It has been specifically mentioned in the F. I. R. that the condition of his father due to sustaining fire-arm injuries has become more serious. Therefore, he had proceeded alongwith his father for his treatment to Aligarh Medical College. He was operated two times. After improving the condition of his father, he went to the police station and lodged the report. Therefore, first option is that the injured or deceased should be taken to the hospital for his treatment. Later on F. I. R. be lodged in this regard. Learned A. G. A. has attracted my attention towards the decision of Supreme Court 2005 (1) JIC 958 SC, Ravi Kumar v. State of Punjab. It is applicable in the present case. Therefore, there is no inordinate delay in lodging the F. I. R. Present applicant alongwith two other unknown persons shot fires upon the body of the deceased. Consequently, he sustained three fire-arm injuries as ante-mortem injuries. In injured condition he was taken by first informant to the hospital and he died in the hospital. Therefore, there is specific role against the present applicant alongwith to other companions to cause fire-arm injuries on the body of the deceased. In the present day where the criminal activities are increasing in the society and present applicant was also having a criminal history as mentioned in para 21 of the affidavit of bail application. There was no need to cover his face at the time of commit his murder as he is not a man, who is only involved in the present case and no other case against the applicant was not registered prior to this occurrence. The prosecution version factum of causing fire-arm is corroborated with the post- mortem report of the deceased. It has been mentioned in para 10 of the counter-affidavit filed on behalf of the prosecution that condition of injured was more poor and he was ill till death in I. C. U. in both hospitals and he never been in a position to make any statement of dying declaration before any authority or officer or I. O. and injured was in I. C. U. of Fortis hospital Noida, Gautam Budh Nagar upto 13-2-2006. Therefore, it shows that he was not conscious from the very beginning till his death. In such circumstances, statement of deceased in injured condition could not be recorded by I. O. or his dying declaration also could not be recorded by any authority. It is worthwhile to mention here that two pieces of bullet were recovered from the dead-body of the deceased. This is the case of broad day light murder in open market;