JUDGMENT K.N. Ojha, J.
1. Heard Sri L.S. Yadav, learned Counsel for the applicant, Sri M.C. Chaturvedi, learned Counsel for the complainant, learned A.G.A. and have gone through the record.
2. Shyam Behari Singh is in jail in Crime No. 56 of 2005 under Section 302/307/336/435/504/506 IPC, P.S. Sahabganj, district Chandauli.
3. According to prosecution Chandra Kant Singh lodged FIR against applicant Shayam Behari Singh (Yadav) and his two sons Jai Prakash Yadav and Sachidanand Yadav on 8.6.2005 at 9.05 a.m. under above-mentioned sections containing the fact that on the same day at about 8 a.m. he alongwith his father, brother uncle were erecting Chappar on the wall after getting it repaired. When applicant armed with license gun Jai Prakash and Sachidanand armed with country made pistols went on their roof, which is near the place where chappar of the complainant was existing and started to through brickbats. This was an old chappar existing since long time in which cattle of the complainant were tethered. In the meanwhile co-accused Jai Prakash sprinkled petrol on the chappar from the roof and threw matchstick and chappar started to burn. Shayam behari and Jai Prakash fired on Ram Awadh Singh Yadav, father of the informant who died on the spot. Sachidanand also fired with his country made pistol on informant Chandra Kant Singh Yadav but no injury was caused.
4. Postmortem examination on the dead body of Ram Awadh Singh Yadav was got done on 9.6.2005 at 3.30 p.m. and following antimortem injuries were found on his body:
1) Lacerated wound 3cmxl. 5cmx bone deep on the right side of face over cheek.
2) Multiple fire arm shots (pellets) entrance wound found in an area of 55 cmx52 cm. Over front of body trunk and abjacent right thigh front and both arms and over back of left hand. Each pellet entry wound found .3 mm in diameter.
On opening the abdomen and chest cavity these pellets had reached the cavity and had lacerated many vital organs. There were multiple perforation due to pellet injuries in right side and left side of the chest. Both lungs were perforated through and through peritoneum and oesophagus were punctured and digested food was present in the stomach and faeccal matter and gases were present in small intestine. Multiple pellets were found in liver and gall bladder. Cause of death was due to hemorrhage and shock as a result of gunshot injuries on chest and abdomen. Thus two firearm injuries were found on his body.
5. A perusal of the record shows that there was enmity in respect of land on which chappar was being erected. It is broad daylight occurrence. FIR was promptly lodged against the applicant. Applicant is said to have been armed with licensegun at the time of occurrence. He is one of the two accused who fired on Ram Awadh Singh Yadav, resulting into his death. There are eyewitnesses of the occurrence. The death of Ram Awadh Singh Yadav was due to firearm injuries. Considering these circumstances, there is sufficient evidence to prima-facie show that applicant committed murder of Ram Awadh Singh Yadav.
6. The learned Counsel for the applicant has laid much emphasis that main accused is another person. A perusal of the record shows that he is head of the family. He was armed with license/gun. There is specific role assigned to him in fir and statement of the witnesses as well as the statement of eyewitness and informant Chandra Kant Singh whose statement was recorded by the learned Addl. Sessions Judge, Chandauli in Session Trial No. 125/2005
7. It is submitted that if fire is made from roof and a person is standing on the earth, firearm injury would be caused on head or from upward to downward rather than right thigh. As is evident from the record that old chappar was already repaired. It was being kept on the wall. This chappar was kept at its height and it was already repaired, therefore, if the injury had taken place on the right side of face and on front of the body trunk, there is nothing inconsistent in the contents of the FIR and postmortem examination report in respect of seat of injury caused to the victim.
8. The occurrence did take place at 8 a.m. the chappar was being prepared since morning. If the victim had not completely eased himself and digested food was found in his stomach, it is not unnatural. The possibility cannot be ruled out that the digested food remained in the stomach because the victim started the repair work of chappar in early morning knowing well that there could be dispute and there being tension in the mind he started to repair the chappar, even though some digested food was in his stomach. Statement of PW-1 Chandra Kant Singh shows that no cross-examination was made from the side of the accused on this point. Thus merely because people generally go to ease in the morning, it can not be presumed that the victim was having satisfactory condition of stomach and would have completely eased himself, therefore, if digested food was found in his stomach, it does not mean that what was stated by the witnesses under Section 161 Cr.P.C. is incorrect. Emphasis has also been laid that only interested witnesses are eyewitnesses of the occurrence. As is evident from the evidence that both parties are of the same place and community. There is dispute of the land on which chappar was being kept. Under such circumstances, if outsider did not want to involve in the dispute, as it will invite wrath or enmity with either of the party, prosecution version cannot be disbelieved merely on the ground that no independent witness has been named in the FIR. One of the persons died. Chappar was burn to ashes and this is sufficient evidence to show the commission of the crime.
9. If a chappar of foos is got prepared in the month of June and petrol is sprinkled, a matchstick is sufficient to burn the chappar, therefore, there is nothing unnatural if it is said that chappar was burn to ashes and one person has been killed.
10. Emphasis has been laid that applicant is suffering from high blood pressure, hypertension, typhoid and cataract. In 1985 (3) Supreme court cases 555 State v. Jaspal Singh Gil it has been laid down by Hon'ble Apex Court that plea that accused had undergone a cardiac operation and needed constant medical attention is not sufficient to grant bail as the Prison authorities may arrange for proper treatment of the accused respondent whenever the need arises, likewise in Pawan @ Tamatar v. Ram Prakash Pandey it has been laid down by the Hon'ble Apex Court that the accused may always believe to the jail authorities to see that he gets required treatment and the gravity of the offence is also to be considered. In instant case there is nothing on record to show that the life of applicant is in danger incase he is not admitted in the hospital immediately. There are the Jail Authorities to look after the health of the prisoners. The illness of the applicant is of general nature and it is not so, that prior to the occurrence he remained admitted in the hospital for many days.
11. Considering the facts and circumstances of the case, this Court does not find it proper to enlarge the applicant Shyam Behari Singh on bail.
12. Bail application moved by Shyarn Behari Singh is rejected.