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Allahabad High Court · body

2015 DIGILAW 1314 (ALL)

Bholey v. State of U. P.

2015-05-20

KARUNA NAND BAJPAYEE

body2015
JUDGMENT Karuna Nand Bajpayee, J. Ms. Poonam Srivastava, Advocate filed purcha on behalf of the informant today in Court, which is taken on record. This application has been filed seeking the release of the applicant on bail in Case Crime No. 164 of 2015, u/s 147, 148, 307, 452, 504, 506 I.P.C., Police Station- Ujhani, District-Budaun. Heard learned counsel for the applicant and learned A.G.A. as well as Ms. Poonam Srivastava, learned counsel for the informant. 2. Perused the record. 3. Counsel has argued that though the applicant is said to have been armed with country-made firearm of 315 bore but the medical examination of the victim does not indicate any bullet injury corresponding to 315 bore weapon. Contention is that the medical examination only indicates injuries which can be caused by 12 bore weapon and therefore, the applicant should be given advantage at this stage and a case for bail is made out in his favour. 4. Learned A.G.A. opposed the prayer for bail and has submitted that during the incident in question a number of fires were made and therefore, it should not be expected from the witnesses to be specific about the fact as to who is the author of the injuries received by victim and as to whose fire actually hit the victim. Submission is that in the cases of indiscriminate firing no such accurate assessment can be made either by the victim or by the witnesses seeing the act of firing and therefore, there is always a reasonable scope to make a mistake about the same. It was further submitted that in the statement of witness Munni Devi, there is specific allegation against the applicant for having been armed with a country made pistol and there is evidence to the effect that the applicant was also one of those accused persons, who indulged in the act of firing. It was also submitted that the victim has received gunshot wounds and it is only a fortunate co-incidence that she survived. It has also been pointed out that in the cases of firing, the accused has no control upon either the velocity of the pallets or bullets nor can he be certain and accurate about the exact site where the bullet or pallet would hit the victim. It has also been pointed out that in the cases of firing, the accused has no control upon either the velocity of the pallets or bullets nor can he be certain and accurate about the exact site where the bullet or pallet would hit the victim. Submission is that the overall circumstances of the case would indicate that the firing was resorted to with the object of causing death and a clear case of 307 I.P.C. is made out. It was further pointed out that the X-Ray report confirms the presence of radio opaque shadows in the body of the victim. 5. Record has been perused in the light of the submissions at the Bar. The applicant's counsel was repeatedly requested to show from record any material indicating that the applicant was actually armed with a 315 bore weapon as had been argued by him. But despite opportunity, counsel could not show anything from record to substantiate this submission. According to the statement of Munni Devi, the applicant is said to have used a country made pistol but there is no specification about the bore. Therefore, submission made by the applicant's counsel that the applicant's case is distinguishable lacks factual basis. The material and the statements submitted along with the application do not indicate that the applicant was armed with 315 bore weapon and hence, no advantage on this ground can be given to him, even if it is presumed at this stage that the injuries incurred by the victim are more likely to have been caused by a 12 bore weapon. 6. In view of overall circumstances of the case and looking to the nature of offence and the material in support of it, this Court does not feel inclined to grant bail to the applicant. Therefore, the bail application is rejected. 7. It may be observed that if on behalf of the applicant some material may be furnished to indicate that the weapon said to have been used by the applicant was a 315 bore firearm, it shall be open to the applicant to move second bail application on that ground. 8. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.