- (1.) AMAR Saran and S. C. Nigam, JJ. Heard Shri P. N. Mishra, learned Sen ior Advocate for the appellants, Shri Ram Raj, learned Counsel for the complainant and learned Additional Government Ad vocate representing the State and perused the record of the case.
(2.) A prayer for bail has been made in this criminal appeal, which has been filed against the judgment and order dated 21. 5. 2008 in ST No. 173 of 2003 whereby the appellants have been convicted and sentenced to life imprisonment under sec tions 302/34 IPC and a fine of Rs. 20, 000/-and five years rigorous imprisonment un der section 307/34 IPC and a fine of Rs. 5000/ -. It is contended by the learned Counsel for the appellants that cross-reports were lodged in this case and both the cases have resulted in convictions on the finding that it was a case of free fight. It is argued by the learned Counsel for the appellants that three persons have received injuries from the side of the appellants-accused and two of the injuries, viz. injury No. 1 to the injured Dinesh, which was a punctured wound 1. 5 cm. x 0. 5 cm on the right side of the chest 10 cm above right nipple and injury No. 4 to the injured Raj Kumar, which was an incised wound 2. 00 cm x 0. 5 cm, whose depth could not be measured and the margin was clean cut and there was a pain on the stomach, the aforesaid injuries have been described as dangerous to life and the complainant side has also been convicted under section 307 IPC. The said injuries have not been ex plained either in the FIR or in the state ments under section 161 of the Code of Criminal Procedure or in the evidence in Court. It is further argued that unless it is specified as to which, of the appellants-accused, three of whom were armed with lathi and one was armed with farsa, has caused the fatal injuries, all of the appel lants ought not to have been implicated under section 302 IPC. Further, reliance has been placed by the learned Counsel for the appellants on the decision of Hon'ble Supreme Court in the case of Bashisth Singh and another v. State of Biirar, 2004 SCC (Cri) 1127 for the proposition that where there are cross case, even if in one of those cases final report has resulted, the bail should be granted in the other case. In the present case, it is contended that the other case has resulted in conviction under section 307 IPC.
(3.) LEARNED Counsel for the com plainant, on the other hand, sought to ar gue that there is a dying declaration, but it is pointed out by the learned Counsel for the appellants that the said dying declara tion was in the form of a statement under section 161 Cr. P. C. to the police by Jaipal and the trial Court has not relied upon it by holding that the statement of the doctor has not been taken that the injured was in a fit condition to make the said statement and moreover, the dying declaration suffers from the same shortcomings as the other evidence as it does not explain the sub stantial number of injuries to the side of the accused. Learned Counsel for the com plainant further tried to argue that bail should only be granted to Kripal Singh, who is said to be armed with farsa as there was no injury of sharp edged weapon on the side of the prosecution. We are not in clined to accept this submission of the learned Counsel.;