RAVINDRA SINGH,J. - (1.) HEARD Sri V.P. Srivastava, Senior Advocate assisted by Sri P.K. Singh and Sri Manoj Kumar Singh, learned Counsel for the applicant, learned A.G.A. for the State of U.P. and perused the record. This bail application has been filed by the applicant Ajit Yadav @ Jitendra Yadav with a prayer that he may be released on bail in case crime No. 612 of 2008 under sections 147, 148, 149, 504, 302 IPC, P.S. Gwaltoli, District Kanpur Nagar.
(2.) THE facts, in brief, of this case are that FIR of this case has been lodged by Md. Ameer on 5.4.2008 at 3.20 P.M. in re­spect of the incident which had occurred on 5.4.2008 at about 2.20 P.M. The distance of the police station was only three kilometers from the alleged place of occurrence. The applicant and four other co-accused are named in the FIR. It is alleged that on 5.4.2008 at about 2.20 P.M. The applicant and other co-accused persons came in Maruti Car No U.P. 78-F 5664 at Nagar Nigam stand, the accused persons were armed with fire arms. The applicant and co-accused Babloo were armed with rifle and DBBL gun asked in abusive language to displace the vehicle and to say how the work and order contract of Nagar Nigam is obtained by them and to finish the matter today. The applicant discharged the shot on the back of the deceased Anwar by his gun, consequently he fell down, one Mallu who was standing nearby scuffled with the applicant then the co-accused Babloo used a butt blow by his rifle on his person. Then the co-accused Pappu, Raju and Sudhir Tripathi discharged the shots in the air, thereafter the applicant again caused a gun shot injuries on temporal region and mouth of the deceased Anwar @ Imran when he was lying on the ground. Thereafter the accused persons discharging the shots in the air left the place of the occurrence on the motorcycles. Due to commission of the alleged offence, the panic was created in the locality. According to post-mortem ex­amination of the deceased, the deceased has sustained two fire arm wounds of entry and two exit wounds and the injured Mallu Gupta had sustained abrasion on the left side face. The applicant applied for bail before learned Sessions Judge, Kanpur Na­gar who rejected the same on 28.8.2008. It is contended by learned Counsel for the applicant mat the alleged occur­rence had taken place by the unknown hired criminals of the contractor who could not be properly identified; it has not been witnessed by the witnesses because the prosecution story is not corroborated by the medical evidence. According to the FIR three shots were discharged by the appli­cant causing the injury on the person of the deceased. It has been specifically alleged that first shot discharged by the applicant causing the injury on the back of the de­ceased, consequently he fell down, thereaf­ter by the second shot the applicant caused injury on the temporal region of the deceased and by third shot applicant caused injury on the mouth of the deceased but according to the post-mortem exami­nation report the deceased had sustained only two gun shot wounds of entry. The injury No. 1 was fire arm wound of entry just below tip of the nose and nasal septum extending the upper lips. The injury No. 2 was fire arm wound of entry on middle of the lower back but there is no injury on the temporal region. It is further contended that both the injuries were not caused as alleged by the prosecution. The injury No. 1 may be as a result of rifle shot. According to the injuries found in the post-mortem examination, the manner of the occurrence was changed, during investigation by put­ting the case of two shots as stated by in­jured Mallu Gupta, that the applicant had fired upon the deceased twice. He stated that he was assaulted by the co-accused Babloo by the butt of the gun. From the alleged place of occurrence two empty car­tridges of 12 bore and two empty cartridges of 315 bore were recovered. The recovery of Maruti car from the alleged place of oc­currence is concocted, it was forcibly taken away from the house of the applicant. The contract of the Nagar Nigam was not in the name of the deceased. The witness Mallu is history sheeter, he was friend of the de­ceased. The deceased was having the criminal antecedents and having several enemies. There is no other witness to sup­port the prosecution story. The applicant has been falsely implicated only because the niece of the applicant Shaifali @ Sonal was kidnapped by the deceased about two years prior the alleged incident, its FIR was lodged by Rajendra Kumar Yadav against the deceased. Amir, Anis and Shaalu in case crime No. 346 of 2006 under sections 363, 366 IPC. The applicant is innocent. He may be released on bail.
(3.) IN reply of the above contention, it is submitted by learned A.G.A. that the alleged occurrence had taken place in broad day light in the heart of the city Kanpur. The FIR has been promptly lodged. The role of causing gun shot inju­ries is assigned to the applicant. By perus­ing the post-mortem examination report, it may not be said that injury No. 1 was not caused by 12 bore weapon. There is no material discrepancies in the statement of the witnesses. It has not been specifically mentioned in the FIR that all the shots dis­charged by the applicant hit the deceased. If any of the shot did not hit the deceased, it does not amount that the alleged incident was not witnessed by any person. The ap­plicant was having strong motive to commit the murder of the deceased. In case, the applicant is released on bail, he may temper with evidence.;