High Court
Case Details
Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19917 of 2022 Applicant :- Mohit Yadav Opposite Party :- State of U.P. Counsel for Applicant :- R P Rajan,Shailendra Kumar Yadav Counsel for Opposite Party :- G.A.,Pravin Kumar Mishra Hon'ble Mrs. Sadhna Rani (Thakur),J.
Legal Reasoning
Heard learned counsel for the applicant, learned counsel for the first informant, learned A.G.A. and perused the record. The bail application under Section 439 Cr.P.C. has been moved by the applicant - Mohit Yadav to enlarge him on bail in Case Crime No. 524 of 2021 under Section 302 I.P.C. Police Station Shivpur, District Varanasi. It is submitted by the learned counsel for the applicant that the FIR is ante time. In the inquest report, the inquest is shown to be started at 7.00 p.m., there is over writing in time 18.15 the time of lodging FIR. Moreover, this inquest report does not bear case crime number, sections and name of the accused persons. It is not clear from the FIR that who, among the accused persons caused the injuries to the deceased. No one witnessed the incident, which took place inside the room. The version of the FIR, inquest report and statement under Section 161 Cr.P.C. of the applicant are contradictory. It was a sudden incident. There was neither any planning nor there was an intention of causing death. The present accused is not said to have bring fire arm with him. It was only co-accused Umesh Patel, who supplied the country made pistol to the present applicant. As it is said that the incident took place inside the room and the deceased is said to have hit, when he fell down at sofa, after a push given by the present applicant, but no scorching/tattooing/ blackening has been found in the injury of the deceased. As per medical jurisprudence of Modi, if a fire is discharged very close to the body or in actual contact.............surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. .........Blackening is found, if a firearm like a short gun is discharged from a distance or not more than three feet and a revolver or pistol discharged within about two feet. If an over short card wad is found in the wound, it indicates that the shot was fired from less than two yards, while its absence suggests more than two yards. Thus, it is argued that if the fire arm was discharged from a close distance then blackening/tattooing/scorching were must, which were missing in the injury of the deceased. The judgement in Alim Ullah Vs. State, 2003 (46)ACC 1151 is also placed before the Court and on the basis of findings of this judgement it is submitted that as firing is stated by the witness from close range but absence of blackening, cherish around wound is unexplained, it makes the prosecution case improbable. It is further argued that in the inquest report the statement of first informant has been recorded while there is no provision of recording the statement of the first informant at the time of preparing the inquest report. The first informant is not the eye witness of the incident. There is no motive of the incident. No fire arm has been recovered at the instance of the applicant. There is no criminal antecedents to the credit of the applicant. The FIR is ante time. The applicant is languishing in jail since 11.10.2021. Hence, prayer of bail is made. Learned counsel for the first informant has opposed the bail application. It is argued that It is the persistent case of the prosecution that the first informant is the eye witness of the incident. In the FIR and in his statement under Section 161 Cr.P.C. it has been clearly stated that he had seen the present applicant firing at the deceased. One empty cartridge is also found by the police inside the room and illegal weapon used in the incident clearly shows that the applicant had some hidden motive and he was successful in it. There is no reason of the false implication. As the incident is witnessed by the first informant, so the motive becomes insignificant. The prosecution has never pleaded that it was a close range firing, neither any distance has been specified in the FIR or in the statement of the first informant under Section 161 Cr.P.C. The FIR is not encyclopedia as the FIR was lodged in flurry so the complete facts could not be mentioned therein. He had seen the pistol in the hands of Mohit. It does not matter whether it was supplied to him by co-accused Umesh Patel or it was with the accused since beginning. Hence, prayer to reject the bail application is made. From perusal of the record, it is clear that since FIR to the statement of the first informant under Section 161 Cr.P.C. the allegation of first informant is consistent that he witnessed the incident from outside the room. It was only the present applicant, who fired at the deceased. The distance of firing has not been mentioned in the FIR or in the statement of the first informant. The empty cartridge has been recovered by the police from the room where the deceased, applicant and his lady companion were present. Though, both the co-accused have been granted bail by the coordinate bench of this court but no parity is claimed, as the role of firing as per FIR and in the statement of the first informant is assigned to the present accused only. In his statement before the Investigating Officer the applicant has disclosed that he had thrown his pistol in river Ganga. Thus, after perusing the record in the light of submission advanced at the bar, taking overall view of the facts and circumstances of the case, the nature of accusation and the period of detention already undergone without commenting on the merit of the case, I do not find it a fit case for bail. The bail application is hereby rejected. Order Date :- 3.11.2022 gp Digitally signed by GANESH PRAKASH Date: 2022.11.07 11:05:24 IST Reason: Location: High Court of Judicature at Allahabad