IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29395 of 2007 RAJU KUMAR @ RAJESHWAR RAJ, son of Late Lal Kishun Sah, R/O MOH-MITHAPUR Nahar, B-AREA , P.S-JAKKANPUR, DISTT- PATNA Versus STATE OF BIHAR . with Cr.Misc. No.39631 of 2009 JAMUN SAH @ JAMUN RAM S/O LATE SITA RAM R/O MOH-MITHAPUR, B- AREA NAHARPAR, P.S-JAKKANPUR, DISTT- PATNA Versus THE STATE OF BIHAR with Cr.Misc. No.40550 of 2009 GUDDU KUMAR, son of Late Lal Kishun Sah, R/O MOH-MITHAPUR Nahar, B-AREA, P.S- JAKKANPUR, DISTT- PATNA Versus THE STATE OF BIHAR . ----------- 2. 07.04.2010 Heard the learned Counsel for the petitioners and the learned counsel for the State. The allegations are under Sections 302/34 of the Penal Code and Section 27 of the Arms Act. It states that the petitioners who are all named accused came to the tea shop where the deceased was sitting and the informant’s mother was sitting outside the shop. The four named accused, each carrying pistol in their hand, pulled out the deceased from the shop by his collar. The four named accused with the pistols in their hands fired at the deceased who fell down and died. The informant further claimed that people in the vicinity had also seen the occurrence. The Post Mortem Report is that a mettalic bullet embedded in the left side of the brain was found. The petitioner in Cr. Misc. No. 29395 of 2007 was granted bail on 6.9.2007 noticing the submission that he was a non-assailant who had been otherwise named as Jamun Sah 2 and only one fire arm injury had been noticed. The aforesaid Jamun Sah then came for bail in Cr. Misc. No. 39631 of 2009 contending that the allegations were common against all the four named accused and he could not be alone called the assailant. The petitioner in Cr. Misc. No. 40550 of 2009 is also a named accused with similar allegation with the defence that in a firing by four persons there was only one fire arm injury. Notice for cancellation was then issued. Learned Counsel for the petitioners submitted that in an allegation of firing by four persons one fire arm injury was found when the informant or his mother in their statement under Section 161 Cr.P.C. have again made generalized allegations and certain independent witnesses in Para 81, 81 and 82 have made similar recitals without any specific attribution to any one of the four. There is no error in grant of bail to the petitioner in Cr. Misc. No. 29395 of 2007 and for that reason the other petitioners are also entitled to bail. The allegation is of firing by four persons and there is one bullet injury. The identity of the accused who came to the shop each carrying fire arms is not in dispute in the First Information Report and is specific. The informant and her mother, the F.I.R. witness, in their statement under Section 161 Cr.P.C. have firmly stood by the original allegation that four named accused entered the shop each possessed with fire arms. This Court has no hesitation in holding that the order dated 6.9.2007 in Cr. Misc. No. 29395 of 2007 was a result of confusion in thought when this Court opined that petitioner 3 Jamun Sah was the assailant and the petitioner Raju Kumar was not the assailant. The fact of the matter in the First Information Report is different. It states that all the four came in the shop each possessed with a fire arm and they fired. The result would be that despite the identity of the accused not being in doubt, courtesy the Investigating Officer, all the four should be granted bail notwithstanding the fact that they came with fire arm, fired and killed one person which is not in controversy, only because it could not be said with certainty which one of them fired. Strong arguments have been made on a plea of alibi on behalf of the petitioner in Cr. Misc. No. 39631 of 2009 i.e. Jamun Sah that independent witnesses in Para 80, 81 and 82 had stated that he was not present at the place. The deceased is father of the informant. The F.I.R. witness is the wife of the deceased. Considering the matter for the purpose of bail this Court is satisfied that keeping in mind the relationship between the informant, the F.I.R. witness and the deceased no one else would make a true disclosure then the daughter and wife of the deceased, of the real accused. This Court is therefore satisfied that in the nature of the allegations, the manner in which the Police has investigated the case, even the petitioner in Cr. Misc. No. 29395 of 2007 is not entitled to continue on bail granted on a confusion of thought. 4 The bail granted to the petitioner in Cr. Misc. No. 29395 of 2007 is therefore cancelled. He is directed to surrender to custody forthwith. Cr. Misc. Nos. 39631 of 2009 and 40550 of 2009 are also rejected. Snkumar/- (Navin Sinha,J.)