JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Shyamvir Singh with a prayer that he may be released on bail in case crime No. 194 of 2005 under Sections 302, 307, 504, 34 I.P.C. P.S. Khudaganj, District Shahjahanpur.
2. According to prosecution version in the present case the F.I.R. has been lodged by Momin Hussain at P.S. Khudaganj on 6.10.2004 at 8.40 p.m. in respect of the incident which has occurred on 6.10.2004 at about 6.00 p.m. The distance of the police station was about 5 km from the place of the occurrence. The F.I.R. was lodged against the applicant and co-accused Ramvir Singh, Satyavir Singh and Omvir Singh.
3. The facts, in brief, ar that on 6.10.2004 at about 6.00 p.m. the first informant along with his three real brothers namely Yaseen Hussain, deceased Usmeen Hussain and Hanif Babu were present at the shop of the first informant, at that timed the applicant armed with rifle, co-accused Ramvir Singh and Satyavir Singh armed with DBBL gun and co-accused Omvir Singh armed with country made pistol came at that shop and the applicant asked to the first informant to give a glass for drinking the liquor. The same was refused by the first informant. Thereafter, all the accused persons hurled the abuses. When they were asked not to abuse, the applicant discharged shot by his rifie. Consequently, the deceased received injuries on his head. He fell down and died on the spot. The first informant and his two remaining brothers along with Abdul Aziz and Abdul Rahman who came at the place of the occurrence, tried to apprehend the accused persons. The remaining accused persons Ramvir Singh, Satyvir Singh and Omvir Singh discharged the shots by their respective weapon. Consequently, the first informant and his two brother received injuries, after committing the alleged offence the accused persons ran away towards the village Pakhaura. Thereafter, the F.I.R. was lodged, inquest report was prepared, injured persons were medically examined and the post mortem was conducted. According to the post mortem report the deceased has received single firearm wound of entry having its exit wound on the left side of scalp and according to medical examination report the injured Hanif Babu received abrasion on the left side chest, injured Mobin Hussain received two abrasion and injured Yaseen received multiple abrasion on the right side of the chest and injured Surajpal received a abrasion. All the above mentioned four injured persons received abrasion having blackening and tattooing and all the injuries were caused by the firearm.
4. Heard Sri G.S. Hajela Sri Radhey Shyam Shukla and Sri Sikendar Raza learned Counsel for the applicant and learned A.G.A.
5. It is contended by the learned Counsel for the applicant:-
(i) that even according to prosecution version the alleged incident has been committed in spur of moment. It was not pre-intended.
(ii) That the prosecution story is not corroborated by the medical evidence because it is surprising that all the injured persons have received abrasion having blackening and tattooing and the injuries received by the deceased is having a dimension of 25 cm. X 8 cm x brain brain cavity deep and this injury was not having blackening or tattooing. It is not a typical injury caused by rifle.
(iii) that the licensed rifle of applicant Shyamvir Singh was already deposited at Rajkumar gun house, Bisahalpur district Pilibhit. It was deposited on 3.9.2004, the bullet was recovered by the I.O. from the alleged place of occurrence. The rifle and the said bullet were sent for opinion of Ballistic Expert, but till now the report is not received
(iv) That according to the F.I.R. witness Surajpal was not injured witness. He has given an application to the police station concerned that he did not know the culprits and he was medically examined whereas the applicant and co-accused persons were known to this witness prior to the alleged occurrence, because the applicant is residing in the adjoining village of this witness.
(v) That the mothers of the applicant and the first informant were candidates for the post of village pradhan where both were defeated by 3rd candidate. Due to this political rivalry, the applicant has been falsely implicated.
(vi) The father of the first informant was a harden criminal and history sheeter. He was having multi corner enmity.
(vii) That the applicant is having no criminal history, He is man of reputation.
(viii) That the witnesses of the facts namely Hanif Babu P.W. 5, the brother of the deceased, witness Abdul Aziz P.W. 6, witness Surajpal Sharma P.W. 7 and the witness Abdul Rahman P.W. 8 have been examined in the trial court. They have not supported the prosecution story. According to their statement the alleged offence was committed by some unknown persons. Therefore, they have been declared hostile. In such situation where the witnesses are not supporting the prosecution story it will not be proper to keep the applicant in jail.
6. It is opposed by the learned A.G.A. by submitting that the applicant and other co-accused persons have committed the alleged offence at about 6.00 p.m. on 6.10.2004 and on the same day at about 8.40 p.m. the F.I.R. has been lodged after covering a distance of 5 km. The presence of the witnesses at the place of the occurrence is undisputed because the first informant and his two brothers received injuries in the said incident and there is specific allegation against the applicant that he caused the injuries on the deceased by rifle. The prosecution story is fully corroborated by the medical evidence, because the rifle shot hit the scalp. He is having the exit wound also. There was a fracture of temporal and occipital bones. In such situation the dimension of the injury must have been increased and other injured have also received gunshot injuries. The injuries were caused from a closed range, because all the injuries were having blackening and tattooing.
7. So for as the injury report of the injured Surajpal is concerned it has no consequence because he was not having any concern with the family of the deceased. The act of the applicant and other co-accused persons shows that they have committed the offence knowing its consequences because the refusal of giving a glass is not sufficient for grave provocation to commit such offence. It shows that the applicant is having a criminal mentality and he wants to create atmosphere of terror and fear to establish the supremacy and the witnesses Hanif Baby P.W. 5, Abdul Aziz P.W. 6, Surajpal P.W. 7 and Abdul Rahman P.W. 8 have been declared hostile due to fear and terror of the applicant and other co-accused persons. Three other co-accused persons, who are real brother of the applicant, have been released on bail. They are terrorising the witnesses. Therefore, the applicant is not entitled for bail where the trial is on advance stage and the some of the witnesses have been declared hostile due to their fear.
8. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the applicant and learned A.G.A. and considering the fact that the applicant is main accused who caused the injuries on the person of the deceased by rifle and there are some injured witnesses also who have received firearm injuries and the trial is at the advance stage and some of the witnesses have been declared hostile including two injured witnesses which may be result of fear and terror of the applicant and other co-accused persons and there are some other eye witnesses including the injured witnesses also mentioned in the list of the witnesses. At this stage if the applicant is released on bail considering the statement of the above mentioned four witnesses it may prejudice the mind of the trial court therefore, without expressing any opinion on the merits of the case the applicant is not entitled for bail, therefore, the prayer for bail is refused.
9. According this bail application is rejected.