Loha Pandey @ Dinesh Pandey vs State Of U.P. on 1 July, 2010

                                                                 Court No. 47
              Criminal Misc. Bail Application No. 15412 of 2008
                 Loha Pandey alias Dinesh Vs. State of U.P.
                                      .-.-.-.


Hon'ble B.N. Shukla,J.

Heard Sri D.S. Mishra, learned counsel for the applicant, Sri Man
Mohan Singh, learned counsel for the complainant, learned A.G.A. for the
State and perused the record.

1. The occurrence is said to have been taken place on 12.6.2007 at
11.05 am and the FIR was lodged on the same day at 11.25 am. Place of
occurrence is veterinary hospital which is 2 kms. away from the police station.
The informant Kamal Singh has lodged FIR against 8 accused persons and
one unknown accused. It is FIR case that accused persons came on 4
motorcycles and after parking it all accused except one went inside the
hospital and fired shots at Mangal Singh and Ram Chhabila who were sitting
in the room. Mangal Singh was declared dead by the doctor and Ram
Chhabila died enroute to Varanasi. One accused remained outside the
veterinary hospital. It is said that all accused persons were armed with fire
arms.

2. Learned counsel for the applicant has submitted that:

(i) The FIR is anti timed;

(ii) The applicant had no motive and no criminal background;

(iii) The deceased Mangal Singh has received 6 ante mortem injuries and
the deceased Ram Chhabila has received one fire arm wound of entry
with corresponding exit wound and the I.O. has recovered 3 empty
cartridges from the spot and part of the bullet from body of the
deceased Mangal Singh;

(iv) There is no evidence about nature of fire arm used by the assailants
and also no specification of weapons;

(v) In inquest report of the deceased Ram Chhabila there is no
specification of section 7 Criminal Law Amendment Act, name of the
first informant not mentioned and on the back there is no mention of
G.D. report number;

(vi) The C.M.O. Ballia informed the S.O. of police Kotwali about arrival of
the dead body of Mangal Singh wherein the parentage of the deceased
Mangal Singh is mentioned as unknown and so is the position of his
residence, police station and the District. Arrival of dead body at
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mortuary is shown at 11.30 am and the person who brought dead body
at mortuary has been shown unknown;

(vii)C.M.O. Ballia informed the S.O. P.S. Kotwali about the admission of
Ram Chhabila in the hospital by the letter dated 12.6.2007 wherein the
parentage of Ram Chhabila is shown as not known. The time of
admission in hospital is mentioned as 11.30 am.

(viii)In police paper there is no mention of time of sending dead body, no
time about death of Ram Chhabila and on the back time is mentioned
as 16.50 pm dated 12.6.2007;

(ix) There is variation in number of accused persons from 8 to 15 and
nature of ante mortem injuries do not support it;

(x) That the witness had not seen the occurrence and the FIR has been
lodged with deliberation;

(xi) That co-accused Sanjeeva Kumar Dubey, Dilip Kumar Tewari and
Arun Kumar Bharti alias Arun Kumar Giri have been allowed bail by
this court;

(xii)That the FIR was received in the court on 18.6.2007.

3. Learned counsel for the complainant has contended that the accused
persons who were allowed bail by this court are not named in the FIR and bail
application of accused Shivaji Choubey and Shiv Kumar Tewari have already
been rejected by this court.

4. In reply learned counsel for the accused-applicant has submitted that
there could be no parity of rejection order but he did not dispute about
rejection of bail application of 2 accused persons namely Shivaji Choubey
and Shiv Kumar Tewari.

5. The applicant is named in the FIR. His presence on the spot is
supported by the witnesses. Discrepancies pointed out by the learned
counsel for the applicant is subject matter of trial. Trial S.T. No. 13/08 is
pending in the court. The complainant Kamal Singh has already been
examined. Variation in number of accused persons as pointed out by the
learned counsel for the applicant vis a vis number of ante mortem injuries
found on the dead bodies is also subject matter of trial. Any observation by
this court would certainly prejudice the trial. Co-accused who have been
allowed bail by this court were not named in the FIR.

6. Considering the facts and circumstances of the case and submissions
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made by the learned counsel for the parties and without expressing any
opinion on the merits of the case, the applicant is not entitled for the bail.

7. Consequently, the prayer for bail of the applicant Loha Pandey alias
Dinesh is hereby rejected at this stage.

Dt/-1.7.2010
Masarrat