JUDGMENT K.N. Ojha, J.
1. Heard Sri S.P. Singh Raghav, learned senior counsel for the applicant and learned A.G.A. and have gone through the record.
2. Applicant Satpal is in jail in crime No. 221/2005, under Section 307, 302, 323 IPC, P.S. Chhata, district Mathura.
3. According to prosecution Gulab Singh, resident of village Birjoo Garni, P.S. Naujhi, district Mathura lodged FIR on 26.11.2005 at 7.15 p.m. against applicant and five others under abovementioned section containing the fact that litigation is going on between accused and the informant and Balveer Singh brother of Gulab Singh, informant is in jail. On 26.11.2005 Netrapal Singh brother of Gulab Singh, Sardar Singh and Raghuveer Singh, maternal uncle of Gulab Singh were coming back from Mathura to Faridabad after making pairvi in bail matter for Balveer Singh. One motorcycle was being driven by informant himself and Netrapal was sitting on the rear seat, another motorcycle was being driven by Sardar Singh and Raghuveer Singh was sitting on its rear seat. Jeep No. HRB 7717 in which applicant and five others were sitting came there and fired on Netrapal Singh and thereafter dashed against the motorcycle on which Raghuveer was sitting. Netrapal died on the spot. Raghuveer was carried to Mangala hospital. Later on he also died.
4. In postmortem examination report one firearm injury was found on the dead body of Netrapal Singh. Raghuveer Singh was shifted to Delhi for better treatment but he could not survive and died. Postmortem examination report of Raghuveer Singh has not been filed by any of the parties but the fact of the death is not denied.
5. Investigation proceeded and chargesheet was submitted by the police against the applicant Satpal and co-accused Dharamveer and Pratap who are named in the FIR but another three co-accused who were named in the FIR, Srichand, Dharamveer and Amichand were exonerated and chargesheet has not been submitted against them.
6. It has been submitted by Sri S.P.S. Raghav, learned senior counsel for the applicant that when the contents of FIR were not found correct by the investigating officer and chargesheet has been submitted only against three accused persons including applicant, the concept of unlawful assembly comes to an end and there is no specific evidence that it was the fire made by the applicant which caused death of Netrapal and Raghuveer.
7. The Learned Counsel for the applicant has cited Sri Krishna v. State of U.P. wherein it was laid down by the Apex Court that when there was absence of previous enmity between the accused and deceased and occurrence was offshoot of trifling scuffle and incident between two urchins, injuries were caused by lathi only and there was no record to show who gave fatal blow, conviction was changed from Section 302 read with Section 34 IPC to Section 325 read with Section 34 IPC.
8. The learned A.G.A. has placed reliance on 2004 (49) ACC 700 Rajendran v. State of Tamil Nadu wherein it was held by the Apex Court that if membership of unlawful assembly has been proved, he is liable for the offence, which is committed by the unlawful assembly even though he has not caused fatal blow. It is submitted that even if it be taken that only three persons fired, still applicant has shared common intention and is liable under Section 302 IPC read with Section 34 IPC.
9. In the instant case there is evidence that there being a murder on the side of the accused Balveer, brother of the informant was in jail. The parties are on such inimical terms that informant started to live at Faridabad and left his village Virjoo garhi Mathura, as applicant was apprehending danger to his life and to the life of his family. In this case two murders were committed and thus this is not a case like the case of Sri Krishna v. State of U.P. cited above. In the instant case enmity was existing since before the occurrence. It is not a trifling scuffle instance but it is a case of double murder. Injury was caused by firearm. Thus the number of deceased persons the nature of the weapon, previous enmity existing between the parties, preparation and manner In which murder has been committed show that the intention of the applicant alongwith others was to commit murder. It is not a case in which injuries were caused by lathi and out of many injuries only one proved fatal like the above cited case.
10. If after investigation some accused have been exonerated, the chargesheet being submitted against the applicant and there being evidence collected during investigation against the applicant prima-facie, there is sufficient evidence to show that the applicant shared with common intention in this double murder case.
11. Applicant is named in FIR. It is broad-daylight occurrence. There is no delay in lodging FIR and there is active role of the applicant in commission of the double murder.
12. Considering the gravity of the offence, active involvement and the common intention which he shared in commission of the double murder, it is not a fit case in which the applicant be admitted to bail.
13. Bail application moved by Satpal is rejected.