IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL ORIGINAL JURISDICTION Criminal IInd Bail Application No.103 of 2009 Order on the Bail application of accused CRIMINAL SIDE Niranjan Singh Pokharia S/o Late Khim Singh Pokharia R/o Village Dangti, P.S. Askot, District Pithoragarh ……….Applicant (In Jail) Versus State of Uttarakhand ------- Opposite party ________________________________________________________ Arising out of Case Crime No.269 of 2008, U/Ss 302/307/506 IPC, P.S. Askot, District Pithoragarh Dated: March 30, 2010 Hon’ble Dharam Veer, J. Heard Sri M.S. Pal, Sr. Advocate assisted by Mr. R.S. Sammal, Adv. for the applicant and Sri Amit Bhatt, learned Addl. GA for the State as well as Sri Rajendra Kotiyal, Adv. for the complainant. The first bail application was rejected on merits on 27.03.2009 only on the ground that deceased had died due to the shot fired by the applicant. In brief the prosecution case is that on 26.7.2008 at about 8 AM, the applicant/accused Niranjan Singh Pokhariya along with co-accused Kundan Singh S/o Khim Singh had caused injuries to deceased Kundan Singh S/o Trilok Singh and also to Govind Singh. It was specifically averted in the FIR that the applicant/accused Niranjan had shot a fire with his gun due to which Kundan Singh S/o Trilok Singh had died. It was further averted that Kundan Singh S/o Khim Singh caused injuries with iron rod and hockey to Govind Singh. Learned senior counsel for the applicant submitted that in the post-mortem report, there is no firearm injury shown and even the deceased had not died due to firearm injury, though in the FIR, specific averment has been made that the applicant-accused had shot a fire with his gun due to which Kundan Singh S/o Trilok Singh had died, as such it creates a doubt in the prosecution story. He further argued that as per the ante-mortem injuries recorded in the post-mortem report, the medical officer has opined that the injuries could have been caused by Iron rod. He further argued that as per the averments of the FIR, co-accused Kundan Singh S/o Khim Singh has been shown to cause injuries while the present applicant was not been assigned the role of causing any injury even to injured Govind. He further argued that on the basis of the same incident, Vimal Pokhariya S/o Niranjan Singh had lodged an FIR u/s 307/323/324 IPC against Govind Singh (injured in this case) and also the allegations were made against Kundan Singh S/o Trilok Singh (now deceased). He further submitted that in the aforesaid incident, present applicant Niranjan Singh Pokhariya also sustained the injuries and he was also medically been examined by the Medical Officer, PHC Didihat on the same day i.e. 26.7.2008 and in the medical report (Annexure 7), as many as –6- injuries were found on his person. Co-accused Kundan Singh S/o Khim Singh was also medically been examined by Medical Officer, PHC Didihat on 26.7.2008 itself and in the medical report (Annexure 8), -7- injuries were found on his person. Contrary to the submissions of learned senior advocate, Sri Rajendra Kotiyal, learned counsel for the complainant argued that the cross case was made just to take the benefit in the present case and final report was also submitted in that case after the investigation. Further, FIR in cross case was lodged on 16.1.2009 while the incident in question took place on 26.7.2008. In reply, learned senior counsel for the applicant submitted that the delay in lodging the FIR from the applicant side had occurred for the reason that the applicant was sent to jail and there was no one in his family to lodge the report and even no Pairokar was there to lodge the report. Even the police was not lodging the FIR and ultimately, an application u/s 156(3) Cr.P.C. was moved before the Magistrate concerned on the basis of which the FIR was lodged and the case could be registered. He further submitted that after the submission of final report in the matter, a protest petition was also preferred in which Judicial Magistrate, Didihat vide his order dated 23.6.2009 directed for re-investigation. This order dated 23.6.2009 was assailed before this Court by way of Petition u/s 482 Cr.P.C. in which this Court on 31.7.2009 in C482 petition No.531 of 2009 stayed the further proceedings in the trial court in the meanwhile. Learned senior counsel for the applicant further argued that as there are cross cased registered against both the parties and there are also injured persons on both the sides, as such, at this stage it cannot be said that which of the parties was aggressor. He further submitted that the averments made in the FIR also does not get corroboration from the post-mortem report, which creates a reasonable doubt in the prosecution story. He further submitted that except for causing of firearm injury, no other specific role has been assigned to the present applicant. He further submitted that as per the evidence recorded before the trial court, there is no firearm injury, which resulted into the death of deceased. He further submitted that the present applicant is in jail since 26.7.2008 and the trial has yet not been concluded. He further argued that most of the witnesses have now been examined and now there is no chance of tampering with the evidence before the trial court. After considering all the facts and circumstances, perusing the contents of the FIR as well as the cross FIR lodged from the side of the applicant/accused; post- mortem report of deceased Kundan Singh S/o Trilok Singh; injury report of Govind Singh and also the injury report of present applicant and co-accused Kundan Singh S/o Khem Singh, and other papers available on record, without expressing any opinion about the final merits of the case, the Court is of the view that the present applicant deserves bail at this stage. Let the applicant Niranjan Singh Pokhariya be released on bail on his executing personal bond and furnishing two sureties each in the like amount to the satisfaction of C.J.M., Pithoragarh. The bail application is allowed accordingly. (Dharam Veer, J.) 30.3.2010 Rajeev Dang