RAVINDRA SINGH,J. - (1.) HEARD Sri V.M.Zaidi, learned Senior Advocate assisted by Sri S.M.G.Asghar, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Ashutosh, learned counsel for the complainant and perused the record.
(2.) THIS Bail application has been filed by the applicant Irfan with a prayer that he may be released on bail in case crime no. 261 of 2009 under sections 302, 307/34 I.P.C., Police Station Gulaothi, District Bulandshahar. The facts, in brief, of this case are that FIR has been lodged by Islam on 29.5.2005 at 11.30 p.m. in respect of the incident which had occurred on 29.5.209 at about 10.00 p.m. The applicant, co-accused Waseem and co-accused Sattar are named as accused in the FIR. It is alleged that on 29.5.2009 at 1.00. p.m. there was a marriage function of the son of Subrati where dance and songs on D.J.sound were going on in halogen bulb light, the deceased was also one of the spectators, some altercation has taken place between the deceased and accused persons, then the deceased fell down by co-accused Sattar and at his exhortation, the applicant discharged a shot, which hit the deceased, consequently the deceased died instantaneously after receiving the gunshot injury. The brother of the first informant, namely, Jamil made hue and cry, the knife injury was caused on his stomach by the co-accused Waseem but with the help of other persons, the applicant and co-accused Sattar were apprehended on the spot. According to the post mortem examination report of the deceased Salman, he had sustained fire arm wound of entry on left side front of his chest having blackening and tattooing and its exit wound and the medical examination report of injured Jamil shows that he had sustained two injuries, injury no. 1 was traumatic swelling and injury no. 2 was incised wound on the left side of abdomen. The applicant applied for bail before the learned Sessions Judge, Bulandshahar, who rejected the same on 24.8.2009.
(3.) IT is contended by learned counsel for the applicant that the alleged incident had taken place in the dark hours of night, it was committed by some unknown persons, the alleged incident had taken place in a sudden quarrel at spur of moment it was not pre-intended, the applicant was having no motive or intention to commit the alleged offence. The alleged occurrence had not taken place as alleged by the first informant, it has taken place in some other manner, even the dead body of the deceased was not found at the alleged place of occurrence, there is a cross version also. A cross FIR has been lodged by Akhtar Khan against Shahid s/o Sayeed Kuraishi, Gulfam, Shahid s/o Hamid Jhoja, Jamil and Salman in case crime no.261-A of 2009 under sections 147, 148, 149, 307, 504, 506 I.P.C., P.S.Gulaothi, District Bulandshahar on 12.7.2009 at 7.30 a.m. It was registered in pursuance of the order passed by learned Magistrate in exercise of powers conferred under section 156 (3) Cr.P.C. In the incident, the applicant Irfan has also sustained wound of entry .75cm x .75 cm on back of left upper arm having its exit wound. It was gun shot injury, he was medically examined on 30.5.2009 at 1.50 p.m.and Waseem has also sustained injury, he was having the complaint of pain. The co-accused Sattar who was also allegedly arrested on the spot has been released on bail by another bench of this Court on 1.9.2009 in Criminal Misc. Bail Application No. 22832 of 2009 and co-accused Waseem has been released on bail by another bench of this Court on 2.9.2009 in Criminal Misc. Bail Application No. 23059 of 2009, the applicant is having no criminal antecedent, he may be released on bail.;