- (1.) G. R Mathur, J. The complainant has moved this application for cancella tion of bail granted to Bhoop Chand op posite party No. 1, 28-11-1996 by Special Judge/addl. Sessions Judge, Faizabad.
(2.) I have heard learned Counsel for the complainant-applicant, learned State Counsel and have perused the record. Learned Cousncl for the accused-opposite party No. 1 has not appeared even in the revised list. The opposite party No. 1 has also not filed any counter-affidavit. A F. I. R. was lodged by Ram Ganesh Pandey alleging that his father Ram Milan Pandey had purchased some land from Smt. Raghu Rani. Bhoop Chand wanted his son-in-law Deomuni to pur chase the aforesaid land. He, therefore, instigated Smt. Raghu Rani to file a civil suit which was pending in the Civil Court. Bhoop Chand also threatened Ram Milan not to contest the civil litigation. At about 5. 30 p. m. on 15-8-1996 Ram Milan was working in his field when accused Bhoop. Chand, his son Kamlesh, son-in-law Deomuni and Lalloo Singh arrived there and started assaulting him with lathis and spear. They also dragged the body of Ram Milan to some distance. The complainant Ram Ganesh raised an alarm on which Ramakant, Dharamraj, Sheo Nandan, Ashok Kumar and some others arrived on the scene of occurrence. The accused look out pistols and threatened the witnesses that in case any one came forward, he would be killed. It is alleged that accused inflicted numerous injuries on the deceased and also caused piercing wound on his eyes. A FIR of the incident was then lodged at 6. 30 p. m. on 15-8- 1996. The post mortem on the body of the deceased was done at 3 p. m. on 16-8-1996. The post mortem report shows that the deceased sustained 15 injuries including three in cised wounds. The accused Bhoop Chand applied for bail and the learned Special Judge/addl. Sessions Judge Faizabad by his order dated 28-11-1996'allowed the application and granted bail to him. In the bail order the learned Sessions Judge has observed that the statement of the wit nesses as recorded under Section 161, Cr. P. C. shows that Bhoop Chand was armed with spear and remaining accused were armed with lathis and the post-mortem report shows that injury Nos. 6, 7 and 11 were incised wounds which had been caused- on elbow and leg. The aforesaid injuries were not responsible for causing the death and the same had been caused by lathis due to which the ribs had been frac tured and both the lungs had been lacerated. The learned Sessions Judge has further observed that no criminal history of the accused had been placed before him. On the aforesaid ground the learned Ses sions Judge granted bail to accused Bhoop Chand. In my opinion, the learned Sessions Judge committed manifest error of law in granting bail to Bhoop Chand accused. According to the case of the prosecution Bhoop Chand wanted Smt. Raghu Rani to execute a sale-deed of her property in favour of his son-in-law Deomani and it was on his instigation that the filed the civil suit. It is stated in the F. I. R. that Bhoop Chand had given threats to the deceased Ram Milan several limes not to contest the civil suit otherwise he would have lo face dire consequences. Therefore, as per the prosecution case the main person who was responsible for commission of the crime is Bhoop Chand. The allegation of the prosecution further is that all the four accused came together and started assault ing the deceased with their respective weapons and they also dragged his body from the field where he was working to a distance of about 8/10 bighas. The post mortem examination indicates that Bhoop Chand also caused injuries to the deceased. Injury No. 11 is an incised wound on the leg and the underneath bone had fractured. This shows that Bhoop Chand has also taken part in the actual assault made upon the deceased. Regard ing the observations made in the bail order that no criminal history of the accused had been placed, it is stated in para 15 of the affidavit that the learned State Counsel had informed the applicant (complainant) that he had placed the criminal history of the accused before the learned Sessions Judge at the time of the hearing of the bail application. A copy of the criminal history of the accused has been filed as Annexure 4 to this affidavit and this shows that Bhoop Chand was involved in five cases under Section 395. I. P. C. , one case under Section 394, I. P. C. and one case under Section 3 of U. P. Gangsters and Ami Social Activities (Prevention) Act. In absence of any counter-affidavit the allegations made in para 15 of the affidavit have to be accepted as correct.
(3.) IN this case four persons are alleged to have assaulted the deceased and Bhoop Chand who was armed with a deadly weapon like spear had also caused injuries which resulted in fracture of the leg bone. The mere fact that there was no injury to any vital part of the body by spear cannot lead to an inference that Bhoop Chand did not intend to cause the death of the deceased or that he did not share the com mon intention with other co-accused to commit the murder of Ram Milan. The individual liability of Bhoop Chand can not be reduced in any manner by the mere fact that there was no spear injury on the chest or abdomen. It may be noticed that in the post-mortem report the doctor has mentioned that death had taken place due to shock and haemorrhage as a result of anic-mortem injuries. This shows that deceased died due to the cumulative effect of the injuries inflicted upon him. I am, therefore, of the opinion that the order granting bail to the accused is wholly unjustified on the facts and circumstances of the case and the same deserves to be set aside. In the result, the application for cancellation of bail is allowed. The bail granted to Bhoop Chand opposite party No. 1 by the order, dated 28-11-1996 in Crl. Misc. Bail Application No. 1897 of 1986 by Special Judge/addl. Sessions Judge Fai/,abad is cancelled. The C J. M. Faizabad is directed to take Bhoop Chand in custody forthwith. Application allowed. .;