Vijay Kumar Verma, J. - (1.) THE ap pellant-accused Surendra Singh has been convicted and sentenced along with co-accused Ajai Pal Singh, Gajendra Singh and Pappu Mahraj @ Vijai Kant to undergo im prisonment for life and to pay a fine of Rs. 10, 000/- with default stipulation under section 302 read with section 34 Indian Pe nal Code (In short 'the IPC'), and ten years' rigorous imprisonment and to pay a fine of Rs. 5000/- under section 307 read with sec tion 34 IPC by the judgment and order dated 29.7.2008, passed by Sessions Judge Jalaun at Orai, in S.T. No. 164 of 2006 and connected S.T. No. 165 of 2006. He has challenged his conviction and sentence by means of this appeal and also has made prayer for bail pending appeal.
(2.) JAGAT Singh (P.W.I) had lodged an FIR on 25.3.2006 at 2.00 p.m. at P.S. Kotwali Kalpi, District Jalaun, where a case under section 302/307 IPC was registered at Crime No. 198/2006 against Surendra Singh (appellant herein), Ajai Pal Singh, Gajendra Singh and Pappu Maharaj, all residents of village Sarsala situated under the jurisdiction of P.S. Kalpi (Jalaun). Shorn of unnecessary details, the allegations made in the FIR, in brief, are that on 25.3.2006 at about 11.00 a.m. Mangal Singh, brother of the complainant and his nephew Ravindra Singh (P.W.2) as well as Ram Mohan Singh were going to their khalihan and when they reached in front of the ghera of Surendra Singh, the accused Surendra Singh having his licenced revolver, Ajai Pal Singh armed with licenced rifle, Gajendra Singh having licenced gun of Surendra Singh and Pappu Maharaj armed with country made pistol (katta) came out from the ghera of Surendra Singh and they all fired indiscriminately towards Mangal Singh and his companions, due to which Mangal Singh and Ravindra Singh sus tained injuries. As a result of those injuries, Mangal Singh died. We have heard Sri Subhash Chandra Maheswari Senior Advocate and Sri S.P. Tiwari Advocate appearing for the appellant, learned AGA for the State and Sri S.S. Rathore Advocate appearing for the complainant on the prayer of bail and pe rused the Trial Court record including im pugned judgment carefully. A number of arguments touching the merit of case were made by the Senior Advocate Sri Subhash Chandra Maheswari in support of the prayer for bail, but his main contention was that the appellant Surendra Singh did not cause any injury either to the deceased or injured Ravindra Singh and hence on this ground, the appellant deserves bail. For this submission our attention was drawn towards paper No. 9 Ka-2, available in Trial Court record, in which the statement of injured Ravindra Singh is recorded. Placing reliance on the statement of injured Ravindra Singh recorded by Dr. P.C. Saxena on 25.3.2006 at the time of his admission in Sahara Hospi tal Gwaliar (M.P.), it was submitted by Sri Maheswari that according to this statement although presence of the accused Surendra Singh at the time of incident has been as serted by the injured Ravindra Singh, but the role of firing has not been assigned to him and according to that statement the shot fired by Ajai Pal Singh is said to have hit the injured, whereas the shot fired by Pappu is said to have hit the uncle of the injured (deceased Mangal Singh). The contention of Shri Maheswari was that merely because the appellant Surendra Singh is said to be present along with other accused persons at the time of incident, he should not be denied the liberty to remain on bail, because the appellant did not cause any injury either to the deceased Mangal Singh or injured Ravindra Singh.
(3.) NEXT submission made by the learned Counsel for the appellant was that according to the findings recorded by the learned Trial Judge in the impugned judg ment, the sole fire arm injury to the de ceased Mangal Singh was caused by the co-accused Ajai pal Singh by.315 bore rifle, whereas according to the statement of in jured Ravindra Singh, who is prime wit ness of this case, the appellant Surendra Singh is said to be armed with his licenced pistol of.22 bore. It was further submitted by Sri Maheswari that as per injury report Ext. Ka 2, the injured Ravindra Singh had sustained only one firearm wound size 0.5 cm, diameter circular in shape with corre sponding exit wound, size 2 cm x 1 cm x depth oval in shape, which is not possible to be caused by.22 bore pistol. It was also submitted in this context that the appellant Surendra Singh was arrested on the day of incident at 10.05 p.m. along with his li cenced pistol of.22 bore bearing No. 91310 as per recovery memo Ext. Ka 19. The said pistol was sent for ballistic examination to the Forensic Science Laboratory Uttar Pradesh Agra along with two empty car tridges of.22 bore, which are said to have been recovered from the place of incident by the Investigating Officer at the time of spot inspection, but according to the Ballis tic Expert report (paper No. 74-A/l in Trial Court record), the recovered empty car tridges of.22 bore were not fired from li cenced pistol No. 91310 and hence on this ground also the appellant Surendra Singh deserves bail, because according to the Ballistic Expert report, the licenced pistol of the appellant was not used in the incident. The learned Counsel for the com plainant and learned AGA vehemently op posed the prayer of bail of the appellant contending that the injuries to the deceased and injured Ravindra Singh were caused by the accused persons in furtherance their common intention and hence with the aid of section 34 IPC, the appellant Surendra Singh is also equally liable for committing the murder of Mangal Singh and making attempt to commit the murder of Ravindra Singh and hence in this heinous crime of day light murder, bail should not be granted to the appellant Surendra Singh, who had strong motive to commit the murder of deceased Mangal Singh, as there was enmity of election of Block Pramnkh, in which the deceased had contested election against the wife of appellant Surendra Singh prior to this incident. It was also submitted by the learned Counsel for the complainant that when bail to the appellant and other accused was granted during trial, an SLP was filed by the complainant before the Hon'ble Supreme Court, which was admitted and notices were issued to the accused persons including the appellant Surendra Singh, but since in the meantime, all the accused persons were convicted by the impugned judgment, hence no order in that case was passed by the Hon'ble Su preme Court and hence on this ground also the appellant should not be granted bail. It was also submitted by the learned Counsel for the complainant that including the ap pellant Surendra Singh, all the accused per sons had actively participated in the inci dent by firing shots from their respective weapons and hence the appellant Surendra Singh cannot be granted bail merely be cause the shot fired by him did not hit the deceased or injured Ravindra Singh, be cause if any criminal act is done in further ance of the common intention, then by virtue of section 34 IPC all the persons sharing common intention are liable for the act done by one or more persons and overt act by all the accused is not the require ment of law to attract section 34 IPC. Re garding the statement of injured Ravindra Singh recorded by the doctor in Sahara Hospital Gwaliar on paper No. 9Ka/2, it was vehemently contended by Sri Rathore, learned Counsel for the complainant, that this statement is not admissible in evi dence, as maker of this statement is alive.;