JUDGMENT Vinod Prasad, J.
1. Heard Sri V.P. Srivastava, learned senior counsel for the applicant assisted by Sri Santosh Shukla Advocate on behalf of the applicant, learned AGA and Sri Rajiv Gupta learned Counsel for the informant in opposition,
2. The applicant seeks bail in crime number 188 of 2005 under Section 307/302/504 IPC Police Station Phaphund District Auraiya.
3. The prosecution allegation in short is that the wife of informant contested the election of village Pradha against the wife of applicant accused Suresh Chandra @ Bade and she won the election against the wife of the accused applicant. Because of the said loosing the family of the accused applicant started nurturing grudge against the informant and his family members. On 5.11.2005 at about 7 PM when the informant was sitting in front of his house along with his cousin brother Hargovind and Neeraj then the three accused Suresh Chandra @ Bade (Present applicant), Mahesh, armed with Country made pistol and Mahabir armed with gun came to the door of the informant vituparising and the present applicant and Mahesh opened fire at them but informant escaped unhurt albeit Hargovind and Neeraj sustained gun shot injuries. The commotion and hue and cry attracted brothers of informant Ram Pal and Balram and the father of Hargovind namely Vidhyadhar and villagers Ram Kumar, Asha Ram and others. The accused made their escape good on challenge. The accused were identified in the electric light. The injured were brought to the district hospital Etawah in a Marshal Jeep where Hargovind was declared dead and Neeraj after first aid was referred to Gwalior, as his condition was serious. Because of serious condition of the injured the report could not be lodged at police station Phapund but was lodged at police station Civil Lines District Etwah at 11.50 PM on that day 5.11.2005 as crime number Nil of 2005 by the informant which was scribed by Sanjai Dohrey and which was subsequently numbered as crime number 188 of 2005 at police station Pahaphund under Sections 307/302/504 IPC. Neeraj also succumbed to the injuries subsequently. The post mortem reports of the two deceased persons indicate that each of them received single gun shot entry wound each of dimension 1 cm x 1 cm, Hargovind had an exit wound also of 2 cm x 2 cm and his wound on entry had blackening.
4. On the said factual matrix learned senior counsel for the applicant contended that the whole prosecution case is false and cooked up and in fact no body had seen the incident. He submitted that no blood was found on the spot where the two deceased were shot at. He further submitted that the blood was found on the roof at a single place "H" shown in site plan by the I.O. He further submitted that the two deceased did not receive any gun shot injury and both the injuries were not caused by country made pistol as both the injuries of the two deceased are 1 cm x 1 cm which is not possible from a country made pistol. In his submission this is an injury by a rifle and that is why one injury of Hargovind has exit wound. He further submitted that three persons are said to have fired at the informant and the deceased and seven empty cartridges were found on the spot on the ground which belies the prosecution case as, but for the two injuries, no body else received any other injury. He further submitted that later on the prosecution found it difficult to explain the blood on the roof and therefore it changed it's version from the FIR and developed a case that after receiving the gun shot injuries the two deceased climbed a wooden ladder to the roof, which case was not in the FIR at all although the same was lodged after a great delay. He further contended that no trial of blood was shown in the site plan even though the deceased were made to run to climb the ladder. He further submitted that had the informant been present on the spot he being the main target would not have been spared to be witness of the incident when the accused are said to have made at least seven fires, the empties of which were found on the spot. He further submitted that left lung, plura, abdominal wall and liver of Hargovind were lacerated and his heart was empty and hence it was not possible for him to climb the ladder. He further contended that the second deceased also has received grievous injury fracturing his 7th clavicle spin as well as 7th vertebral disc, and therefore he would have become immobile unable to climb the bamboo ladder and the 161 Cr.P.C. Statement of the informant was recorded by the I.O. after seeing the spot at the house of the informant. Concludingly he submitted that in the night the two deceased were shot at on the roof and later on the case was cooked up and the applicant due to enemity of election is falsely implicated and he deserves bail.
5. Learned AGA as well as learned Counsel for the informant, contrarily contended that in this case the applicant had shot at the two deceased persons as a result of which they sustained injuries and died. There is an eyewitness account of the incident. They further argued that the applicant had a strong motive to commit the crime. They further submitted that in fact when the two deceased were climbing the ladder then they were shot at. They further argued that the fact that deceased were climbing on the ladder could not be mentioned in the F.I.R. as the FIR is not an encyclopedia. They further contended that the blood did not oozed out because it was filled in the cavity. They contended that the applicant does not deserve bail.
6. I have given my anxious consideration on the contentions raised by the rival sides, It is not disputed that no blood was found on the spot where the incident is alleged to have taken place. It is also not disputed that seven empty cartridges of 12 bore were found on the spot. It is also not disputed that the size of two injuries to the two deceased were exactly the same though two separate country made pistols were used in the crime by two persons. It is also not disputed that but for the two injuries to the two deceased no other person received injury in the incident. It is also not disputed that the main target was the informant and not the two deceased persons. It is also not disputed that the FIR does not contain the recital that the two deceased climbed the bamboo ladder. It is also not disputed that the distance of shot is 17 paces and there was blackening in wound of Hargovind and that the statement of the informant was recorded on the spot by the I.O. When he had reached on the spot. It is also not disputed that the incident is of night and that the FIR was lodged at police station Civil Lines instead of police station Phaphund.
7. Considering all these fact but without expressing any opinion on the merit of the case I consider it appropriate to release the applicant on bail in the aforesaid crime number.
8. Let applicant Suresh Chandra @ Badebe released on bail in crime number 188 of 2005 under Section 307/302/504 IPC Police Station Phaphund District Auraiya on his furnishing a personal bond of Rs. One lakh and two sureties each in the like amount to the satisfaction of CJM Auraiya. One of the two sureties will be near relative. He is further bound by the following conditions:
(a) That the applicant will not abscond nor tamper with prosecution witnesses.
(b) That the applicant will report to the police station concerned once in a month at a time to be fixed by the officer in charge of the said police station.
(c) That the applicant will not leave District Auraiya without intimation to the officer-in-charge of police station concerned and permission of the court concerned.
(d) That the applicant will co operate with the trial and will not seek any unnecessary adjournment.