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2009 DIGILAW 3622 (ALL)

Irfan v. State of U. P.

2009-11-30

RAVINDRA SINGH

body2009
JUDGMENT: Ravindra Singh, J. Heard Sri V.M.Zaidi, learned Senior Advocate assisted by Sri S.M.G. Asghar, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Ashutosh, learned counsel for the complainant and perused the record. This Bail application has been filed by the applicant Irfan with a prayer that he may be released on bail in case crime no. 261 of 2009 under sections 302, 307/34 I.P.C., Police Station Gulaothi, District Bulandshahar. 2. The facts, in brief, of this case are that FIR has been lodged by Islam on 29.5.2005 at 11.30 p.m. in respect of the incident which had occurred on 29.5.209 at about 10.00 p.m. The applicant, co-accused Waseem and co-accused Sattar are named as accused in the FIR. It is alleged that on 29.5.2009 at 1.00. p.m. there was a marriage function of the son of Subrati where dance and songs on D.J.sound were going on in halogen bulb light, the deceased was also one of the spectators, some altercation has taken place between the deceased and accused persons, then the deceased fell down by co-accused Sattar and at his exhortation, the applicant discharged a shot, which hit the deceased, consequently the deceased died instantaneously after receiving the gunshot injury. The brother of the first informant, namely, Jamil made hue and cry, the knife injury was caused on his stomach by the co-accused Waseem but with the help of other persons, the applicant and co-accused Sattar were apprehended on the spot. According to the post mortem examination report of the deceased Salman, he had sustained fire arm wound of entry on left side front of his chest having blackening and tattooing and its exit wound and the medical examination report of injured Jamil shows that he had sustained two injuries, injury no. 1 was traumatic swelling and injury no. 2 was incised wound on the left side of abdomen. The applicant applied for bail before the learned Sessions Judge, Bulandshahar, who rejected the same on 24.8.2009. 3. It is contended by learned counsel for the applicant that the alleged incident had taken place in the dark hours of night, it was committed by some unknown persons, the alleged incident had taken place in a sudden quarrel at spur of moment, it was not pre-intended, the applicant was having no motive or intention to commit the alleged offence. It is contended by learned counsel for the applicant that the alleged incident had taken place in the dark hours of night, it was committed by some unknown persons, the alleged incident had taken place in a sudden quarrel at spur of moment, it was not pre-intended, the applicant was having no motive or intention to commit the alleged offence. The alleged occurrence had not taken place as alleged by the first informant, it has taken place in some other manner, even the dead body of the deceased was not found at the alleged place of occurrence, there is a cross version also. A cross FIR has been lodged by Akhtar Khan against Shahid s/o Sayeed Kuraishi, Gulfam, Shahid s/o Hamid Jhoja, Jamil and Salman in case crime no.261-A of 2009 under sections 147, 148, 149, 307, 504, 506 I.P.C., P.S.Gulaothi, District Bulandshahar on 12.7.2009 at 7.30 a.m. It was registered in pursuance of the order passed by learned Magistrate in exercise of powers conferred under section 156 (3) Cr.P.C. In the incident, the applicant Irfan has also sustained wound of entry .75cm x .75 cm on back of left upper arm having its exit wound. It was gun shot injury, he was medically examined on 30.5.2009 at 1.50 p.m. and Waseem has also sustained injury, he was having the complaint of pain. The co-accused Sattar who was also allegedly arrested on the spot has been released on bail by another bench of this Court on 1.9.2009 in Criminal Misc. Bail Application No. 22832 of 2009 and co-accused Waseem has been released on bail by another bench of this Court on 2.9.2009 in Criminal Misc. Bail Application No. 23059 of 2009, the applicant is having no criminal antecedent, he may be released on bail. 4. In reply of the above contention, it submitted by learned A.G.A. that it is a case in which specific role of causing gun shot injury has been assigned to the applicant, there is injured witness also. Bail Application No. 23059 of 2009, the applicant is having no criminal antecedent, he may be released on bail. 4. In reply of the above contention, it submitted by learned A.G.A. that it is a case in which specific role of causing gun shot injury has been assigned to the applicant, there is injured witness also. According to the post mortem examination report, the deceased had sustained gun shot wound of entry having blackening and tattooing and its exit wound, the injury was on the left side of the chest, the FIR has been promptly lodged, the place of occurrence is not disputed, even by site plan and spot inspection note, the cross version is having no substance because according to the medical examination report of the injured, he had sustained wound of entry on back of left upper arm, he was medically examined on 30.5.2009 at 1.50 p.m. whereas the alleged occurrence has taken place on 29.5.2009 at 10.00 p.m.but duration of the injury is mentioned as fresh, which may not be after about 15 hours, this injured was not having any complaint also, the case of the co-accused who have been released on bail is distinguished by another bench itself while granting bail to the co-accused Sattar vide order dated 1.9.2009, the applicant may not be released on bail. 5. Considering the facts, circumstances of the case, submission made by learned counsel for the applicant, learned A.G.A., learned counsel appearing on behalf of the complainant and from the perusal of the record, it appears that the FIR of this case has been lodged within 1.30 hours, the allegation against the applicant is that he caused gun shot injury on the chest of the deceased, it was having blackening and tattooing, the case of the applicant is distinguished with the case of the other co-accused because according to the prosecution version, the co-accused Sattar, who was allegedly arrested on the spot, did not cause any injury and co-accused Waseem was on the spot he did not cause any injury to the deceased, the applicant has been allegedly apprehended on the spot, the cross case is at a belated stage and without expressing any opinion on the merits of the case, the applicant is not entitled for bail, the prayer for bail is refused. Accordingly this application is rejected.