- (1.) SHIV Shanker, J. This is the first bail application moved on behalf of applicant Om Prakash, son of Shri Kali Charan in case crime No. 242/2006 under Sections 323, 302, 307, 504, 506 I. P. C. , P. S. Khandauli, District Agra.
(2.) BRIEFLY prosecution case according to F. I. R. is that on 10/11- 7-2006 in the night, the first informant Sunil Kumar Upadhyay, his mother Smt. Kamla Devi and his grand-father Kali Charan were sleeping in the Verandah of the house at about 12. 30 a. m. (in the night ). His uncle Om Prakash, Mukesh and one master alias Rama Shankar residents of the same village came at his house, wherein Om Prakash armed with country made pistol, Rama Shankar and Mukesh armed with lathi had started abusing to them. He and Kali Charan were beaten by them with dandas by saying that how land will be transferred in the name of his elder son Ram Kishan, upon which he has stated that he lived with him and he is also cared by him and on the other hand they (accused persons) used to beat and abuse him, therefore, land will not be transferred with their names, upon which Mukesh and Rama Shankar had asked Om Prakash to kill an old man, upon which Om Prakash shot fire in the abdomen of his grand-father with country made pistol, consequently, he died on the spot. Thereafter another shot was made upon the informant but he saved fortunately due to missing of fire. Thereafter, the F. I. R. was lodged by him against above accused persons on 11-7-2006 at 8. 30 a. m. Heard learned Counsel for the applicant and learned A. G. A. as well as perused the whole record. After considering the submissions made on behalf of learned Counsels for both the parties and perused the record, it appears that this incident had taken place on 10/11-7-2006 at 12. 30 a. m. in the mid-night and the F. I. R. was lodged on 11-7-2006 at 8. 30 a. m. after 8 hours of the alleged occurrence while distance of police station from the place of occurrence was about 2 kilometers. It is contended by learned Counsel for the applicant that no sufficient explanation has been given regarding such delay of 8 hours. Explanation has been given in the F. I. R. that the first informant and his mother were hidden at the house due to fear of the assailants, therefore, it has not been properly explained at this stage. According to F. I. R. , the deceased was also beaten with dandas but no any blunt object injury was found on the dead-body of deceased. This is case of night hours. Source of light has not been disclosed in the F. I. R It has been disclosed in the statement of first informant that there was electric light. Gram Pradhan of the village Ram Nagar Kshetra Panchayat Khandauli, District Agra has issued a certificate certifying that there is no electricity connection in the name of Sri Kali Charan, son of Ganga Prasad, Kamla Devi, wife of Ram Kishan and Sunil, son of Ram Kishan vide Annexure-1 to the supplementary affidavit (papers No. 7, 8, 9 and 10 of supplementary affidavit ). This has not been controverted by filing other affidavits on behalf of opposite party. Therefore, there was suspicion regarding electric light at the time of alleged occurrence. It is worthwhile to mention here that the deceased had three sons namely Ram Kishan, Om Prakash and Mukesh and motive in this case has not been shown that deceased Kali Charan wanted to transfer his property to his one son Ram Kishan, upon which two sons of the deceased Om Prakash, the present applicant and Mukesh were annoyed and they committed murder. According to Hindu Succession Act, three sons has right upon the property of the deceased after his death. Nothing has been mentioned in the F. I. R. that prior to the alleged occurrence, the deceased had stated before any witness that his land will be transferred only in the name of the father of the first informant. In absence of that, question did not arise to commit murder of deceased. This is not the case. If any deed has been executed in the name of one son, on that basis he could not be murdered by other sons Om Prakash present applicant and Mukesh. According to Hindu Succession Act, legal heirs who committed murder of his father in such circumstances, murderers cannot inherit his property and in such circumstance, there was no occasion to commit murder of his father. The circumstances show that two sons of deceased will be made accused in committing murder of their father and they will not inherit property being murderers and whole property will go in succession to Ram Kishan, father of the first informant.
(3.) AFTER considering the facts and circumstances of the case and night occurrence and delay in lodging the F. I. R. and without expressing any opinion on merit of the case, he is entitled for bail. Let the applicant named above in the above noted case crime be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of Court concerned. Application allowed. .;