Sanjay Singh vs State of U.P.

Ravindra Singh, J.—This application has been filed by the applicant Sanjay Singh with a prayer that he may be released on bail in Case Crime No. 358 of 2007 under Sections 302 and 120B, I.P.C., P. S. Kakadeo, district Kanpur Nagar.

The facts in brief of this case are that the F.I.R. of this case has been lodged by Mohan Tiwari on 2.11.2006 at 7.35 a.m. in respect of the incident which had occurred on 2.11.2007 at about 6.00 a.m., the distance of the police station was about one and half km. from the alleged place of occurrence. The applicant, co-accused Vinay Singh and Bhim Singh are named in F.I.R. and one miscreant was unknown.

It is alleged that the first informant alongwith his wife, the deceased Savitri Tiwari gone to morning walk, when they reached near a Tiraha of Government Girls College, all of a sudden one car came there from which the applicant and Vipin Singh came out, the applicant was armed with country made pistol. The hands of the deceased were caught hold by the co-accused Vipin Singh then the gun shot injury was caused on her person by the applicant. One Bhim Singh was also exhorting. After sustaining injury the deceased died instantaneously. According to the post mortem examination report the deceased has sustained gun shot wound of entry through and through. The applicant applied for bail before learned Sessions Judge, Kanpur Nagar, the same was rejected on 10.3.2008. Being aggrieved from the order dated 10.3.2008 the present bail application has been moved by the applicant.

Heard Sri J.S. Sengar, Sri V.N. Rai and Sri Adarsh Kumar, learned Counsel for the applicant, learned A.G.A. for the State of U.P., and Sri Prashant Pandey, learned Counsel for the complainant.

It is contended by learned Counsel for the applicant that the alleged occurrence has not taken place as alleged by the prosecution. The presence of the first informant at the alleged place of occurrence is highly doubtful. The F.I.R. of this case is ante timed. The first informant has not sustained any injury in the said incident even nobody has made any attempt to cause injury on his person. According to the prosecution version the time of the alleged incident is about 6.00 a.m. but according to the post mortem examination report the betray food was present in the stomach of the deceased, pasty material and gases were found in his small intestine, faecal matter and gases were also found in large intestine. The presence of the pasty matter in small intestine shows that the alleged occurrence has not taken place at about 6.00 a.m. and no blackening and tattooing was found on the wound of entry which belies the prosecution story of catching hold thereafter causing the injury. The F.I.R. was not in existence at the time of preparation of the inquest report because in inquest report the description of the enclosures have been given, Nos. 2 and 3 are enclosures of nakal chik and nakal rapat but the numbers of papers have not been mentioned whereas the number of the papers of other enclosures have been clearly mentioned therein. It shows that neither the chick nor the nakal rapat was in existence at the time of preparation of the inquest report which was allegedly prepared on 2.11.2007 since 7.50 a.m. to 8.40 a.m. The applicant was having no motive or intention to commit the alleged offence. The applicant is a man of peace loving person he has been falsely implicated only on the basis of doubt and suspicion.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that the alleged occurrence has taken place in day light, F.I.R. has been promptly lodged, the applicant is the main accused who caused the gun shot injury on the person of the deceased. After sustaining the gun shot injury the deceased died instantaneously, the F.I.R. has been promptly lodged. The first informant was present in the company of the deceased. There is no reason to disbelieve his presence at the alleged place of occurrence. According to the post mortem examination report there is presence of the pasty matter in the small intestine, it cannot be said that the alleged occurrence has not taken place at about 6.00 a.m. because the deceased had eaten something in the night and in the process of digestion the matter went to small intestine from the stomach because the stomach was containing small watery food. It would have been taken by the deceased before going to morning walk and due to non-mentioning of the number of the papers of chick and nakal rapat it cannot be said that the F.I.R. was not in existence at the time of preparation of the inquest report whereas the time of the incident and time of lodging the F.I.R. has been clearly mentioned in the police form No. 33 (chalan nash). Due to non-mentioning of the numbers of the papers, no adverse inference can be drawn and due to non-presence of blackening and tattooing the prosecution story cannot be disbelieved because it always depends upon the nature of the cartridges used in firing and on the distance from which the firing was done. The applicant is main accused, in case he is released on bail he shall tamper with the evidence, therefore, he may not be released on bail.

Considering the facts, circumstances of this case, submissions made by learned Counsel for the applicant, learned A.G.A., learned Counsel for the complainant and from the perusal of the record it appears that according to the prosecution version the applicant is the main accused who caused gun shot injury on the person of the deceased and at this stage no inference can be drawn due to presence of the pasty matter in small intestine regarding alleged time of occurrence. All these points shall be considered by the trial court when the evidence is adduced and without expressing any opinion on the merits of the case the applicant is not entitled to be released on bail. The prayer for bail is refused.

Accordingly, this application is rejected.