RAVINDRA SINGH,J. - (1.) HEARD Sri J.S.P. Singh, Sri Amit Daga, learned counsel for the applicant, Sri Abhinav Singh, Sri Swetashwa Agarwal, learned counsel appearing on behalf of the complainant, learned A.G.A. for the State of U.P. and perused the record.
(2.) THIS bail application has been filed by Sudhir with a prayer that he may be released on bail in case crime no. 81 of 2009 under sections 147, 148, 149, 302, 307, 504 I.P.C., P.S. Fugana, District Muzaffar Nagar. The facts, in brief, of this case are that FIR has been lodged by Sat Singh on 11.3.2009 at 7.30 p.m. in respect of the incident which had occurred on 11.3.2009 at 7 p.m. The applicant and co-accused Ravindra, co-accused Ramesh and co-accused Jasveer are named in the FIR as accused. It is alleged that the applicant and other co-accused persons were wandering in the mohalla on 11.3.2009 and were creating nuisance infront of the house of the first informant, when they were asked to leave the place, on which they hurled abuses and discharged the shots by country made pistols, consequently, the deceased Shivam, aged about 6 years, sustained gun shot injuries, who died instantaneously, thereafter they fled away by discharging the shots. The alleged occurrence has taken place at about 5.00 p.m. The deceased was taken to Shamli Nursing Home, where the doctor declared him dead. According to the post mortem examination report, the deceased had sustained fire arm wound of entry having its exit wound. The applicant applied for bail before the learned Sessions Judge, Muzaffar Nagar, who rejected the same on 4.9.2009.
(3.) IT is contended by learned counsel for the applicant that the alleged occurrence has taken place at spur of moment, it was not pre-intended. The applicant was having no motive or intention to commit the alleged offence, even according to the prosecution version, the shot was discharged at the first informant which did not hit the first informant, accidentally it hit the deceased Shivam, who was near the first informant. According to the FIR, it has not been specified that whose shot hit the deceased. According to the post mortem examination report, the deceased had sustained only one gun shot wound of entry having its exit wound. The prosecution story is not corroborated by this site plan and spot inspection note because the deceased had sustained injuries at place 'A' it was fired from place 'B' which is far away from the house of the first informant, it was at a distance of 110 paces. According to the site plan at place 'C' one Jasveer has sustained injuries, the distance between B and C was about 32 paces and at place XXX Shalendra Devendra and Km.Rita sustained gun shot injuries but FIR is silent in respect of the other injured persons who sustained injuries in the said incident. There is a cross version also. The prosecution has not come with clean hands and has not explained the injuries sustained by the side of the applicant.;