Hon'ble Shyam Shankar Tiwari,J.
Heard Sri N. L. Pandey, learned Advocate who appeared to press bail application moved on behalf of Pawan Paria in the present appeal and Shyam Pal Singh who is accused in connected Criminal Appeal No. 7211 of 2009 and learned Additional Government Advocate for the State.
Both the appellants above named were prosecuted for the offence punishable under Sections so mentioned in the judgment and they are to serve out the sentence so provided.
Submission is that it is a case where for theincident for an offence under Section 307 IPC, F.I.R. is said to have been lodged on 22.7.2004 but no injury report was prepared on examination of the injuries immediately thereafter and after quite long medical examination report is said to be prepared. It is further submitted that no fard was also prepared by the investigating agency and that was prepared after couple of months. Further submission is that prosecution version is not supported by the medical examination report as it is said that the fire is from very close range where as no blackening is there. It is then submitted that initial allegation/charge is also under Section 387 IPC also but that aspect to commit the offence has not been proved and there being material contradiction in the statement of prosecution witnesses, as the appellants were on bail during the trial, they are entitled the discretion of this court during the pendency of this appeal.
Learned Additional Government Advocate and Sri S. C. Dwivedi, learned Advocate holding brief of Sri Vikas Tiwari to oppose the aforesaid submits that very innocent argument has been advanced by the appellant side although if the facts are deeply examined then the offence can be said to be very serious than an offence under Section 302 IPC. Submission is that in fact the position of the injured is something more critical/serious than a dead person for the simple reason that for all practical purposes he is now 100% disabled as has been opined by the Doctor also.
Submission is that injury was so serious which has been rightly taken to be dangerous to the life as for getting its treatment, the injured has to rush from place to place i.e. Jhansi, Gwalior and then Appolo Hospital, Delhi where he remained admitted for long and he was operated for a major surgery.
Submission is that if on these facts learned Trial Judge believed the prosecution version and convicted the appellants are not entitled for bail.
After hearing aforesaid facts and on notice of details two facts are clear.
So far Pawan Paria is concerned the role assigned to him is of extortion and so far Shyam Pal Singh is concerned the role is of fire. In respect to the factum and the manner of incident, doubt is sought to be created during arguments and the presence of witnesses was also tried to be argued to be doubtful but that may not be proper at this stage.
Be as it may, facts remains that the injured received fire arm injury and role of fire is assigned to Shyam Pal Singh.
On examination of the injury there can be no manner of doubt that it was found to be dangerous to life and the injured was treated in various hospitals and ultimately he was operated in Apolo Hospital, Delhi where he remained admitted for quite long.
Injured became disabled in all respect for all practical purpose.
Learned Trial Judge has also made observation that against Shyam Pal Singh there are dozen of cases pending and thus he has criminal history to his credit.
Cases pending against Shyam Pal Singh are in respect to attempt to murder and murder besides other serious charges.
On the facts, this Court is of the view that distinction can be clearly drawn between the case of Pawan Paria and Shyam Pal Singh.
Keeping in mind the role assigned, this Court is of the considered view that Pawan Paria is entitled to be released on bail but Shyam Pal Singh is not entitled to any discretion.
Accordingly, let the appellant Pawan Paria son of late Subodh Paria involved in S.T.No. 26 of 2005, be enlarged on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.
Realization of fine in respect to above appellant to the extent of fifty percent shall remain stayed. Balance amount of fine shall be deposited forthwith. The release order shall be sent after deposit of fine.
So far Shyam Pal Singh who is accused in Criminal Appeal No. 7211 of 2009 is concerned his bail application is rejected.
Order Date :- 3.2.2010 Sachdeva