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2010 DIGILAW 1760 (ALL)

Amitabh Rai @ Babua Rai v. State of U. P.

2010-05-25

B.N.SHUKLA

body2010
Hon'ble B.N. Shukla, J.:- 1. Heard learned counsel for the applicant, Sri Kamal Krishna, learned counsel for the complainant and learned A.G.A. appearing for the State. 2. It is contended by the learned counsel for the applicant that in post mortem report the deceased had received one gun shot wound and allegation is that two accused had fired shots, the applicant was never declared absconder and even the complainant had filed an affidavit in the court disowning his statement under section 161 Cr.P.C. It is further contended that the deceased himself had criminal history of about 13 cases to his credit as shown in the Annexure-8 filed with the supplementary affidavit. 3. Learned private counsel from the side of the complainant has contended that the applicant was absconding from about 12 years and by order of the High Court he surrendered in the trial court and in paragraph 12 of the affidavit no reason has been shown for absconding and charge sheet has been submitted by C.B.C.I.D. in the year 1999. It is further contented that the applicant had fired shot and killed the deceased and there is specific allegation against him. 4. Informant Yogendra Yadav had lodged an FIR on 11.9.1998 at about 7:00pm with the allegation that when his brother Surendra and Suryanath along with their mother Sudama Devi were doing weeding work (Sohni) then the accused Sharda Nand Rai @ Luther Rai wielding lathi and Pawan Rai with hockey came along with accused Rajesh Rai and Babua Rai (the applicant) and attacked them. On exhortation all the accused persons started assaulting Surendra, Suryanath and Sudama Devi. There is allegation that the applicant Babua Rai and Rajesh had country made pistols and they fired at Surendra and killed him. Initially, the investigation was taken by local Police and thereafter investigation was transferred to C.B.C.I.D. and charge sheet has been submitted against the accused persons,. In FIR, it is also mentioned that Surendra was firstly beaten by lathi, hockey, fists and kicks and he was taken towards Narainpur and when the informant and the other persons ran to rescue him then the applicant and co-accused Rajesh Rai fired shots at Surendra. 5. Annexure-8 to the supplementary affidavit shows 13 criminal cases against Surendra (the deceased). It means he was having criminal antecedent. 6. 5. Annexure-8 to the supplementary affidavit shows 13 criminal cases against Surendra (the deceased). It means he was having criminal antecedent. 6. The Informant himself had filed an affidavit before the court disowning his statement under section 161 Cr.P.C. Even in rejection order of the Sessions Judge this fact has been mentioned. 7. In post mortem report one fire arm wound has been found. 8. In FIR it is mentioned that 'Sohni' work was being done in the paddy field of the Informant/deceased but the informant has changed this version in his statement under section 161 Cr.P.C. and stated therein that he took the field on 'batai' from Vindhyachal of Mauja Rasoolpur but Vindhayachal has denied this fact. 9. It is submitted by learned counsel for the complainant that only the applicant has surrendered in the court and other accused are still absconding. In paragraph-12 of the affidavit filed along with the bail application it is mentioned that applicant was never absconding. 10. Incident relates to the year 1998. C.B.C.I.D. has submitted charge sheet in the year 1999. Witnesses Sudama, Joginder and Surya Nath have given statement under section 164 Cr.P.C. before the Magistrate and made allegation of firing but Sudama Devi had given statement that exhortation was given by Sarda Nand Rai and she made allegation against Prem Nath Rai but he is not an accused and never accompanied the accused. In statement under section 164 Cr.P.C. she has not stated which accused had fired shot at her son Surendra. Similarly Joginder and Surya Nath have not named the accused who fired shots. According to these witnesses several shots were fired but in post mortem report one fire shot wound has been found. 11. Considering the facts and circumstances of the case and submissions made by the learned counsel for the applicant and without expressing any opinion on the merits of the case, the applicant is entitled to be released on bail. Let the applicant Amitabh Rai involved in Case Crime No. 126 of 1998 under Sections 364, 302, 323, 504, 506, 352 IPC Police Station Narahi, District Ballia be released on bail on his furnishing a personal bond with two heavy sureties each in the like amount to the satisfaction of the court concerned with the following conditions :- 1. The applicant shall not indulge in any such activity in future. 2. The applicant shall not indulge in any such activity in future. 2. The applicant shall not pressurise/intimidate the prosecution witnesses and evidence during trial. 3. The applicant will appear before the trial court on the date fixed. Identity, status and residence proof of the sureties be verified by the authorities concerned before they are accepted. In case the applicant does not appear in court or causes delay in progress of the trial, then the trial court would be at liberty to send the applicant to jail as under trial ignoring bail order of this Court.