IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37798 of 2009 OM PRAKASH DUBEY Versus STATE OF BIHAR ----------- 3/ 10.12.2009 Heard Sri Kamal Nayan Chaubey, learned senior counsel appearing for the petitioner and Sri Dashrath Mehta, APP for the state. The case diary has been referred to me. I have perused some of the paragraphs myself. The incident appears taking place, as per the allegations, on account of cleaning of a Sahan by the deceased which was allegedly objected to by the present petitioner. Some exchange of hot words allegedly took place between the two accused persons and the prosecution side and due to rush of blood the two accused persons climbed up the roof top of the house. It is alleged that from there, the petitioner fired two shots at the deceased Nagendra Dubey after getting gun from the hands of his wife. Attention of the court has been drawn to Annexure 4 to the supplementary affidavit, which is a complaint addressed by the petitioner to his superiors which appears further transmitted to the Collector and concerned Superintendent of Police in which a case of free fight on account of land dispute for the Sahan as also the story of the informant, the deceased and others being trespassers and aggressors, appears made out. It is alleged in that petition that the informant and others ransacked the house of the petitioner and attempted to criminally assault the women folk of the house and removed several valuable properties from there. It was contended by the learned senior counsel for the - 2 - petitioner that if the court peruses and considers the opinion of the doctor who held postmortem examination on the dead body, it could come to a conclusion that the injuries which were found on the dead body of the deceased at two different sites, were not possible. It was contended that as per the prosecution, the shots were fired from the roof top while the deceased was at the ground level and the charring found around the two wounds completely overrules the possibility of the manner of occurrence and, as such, makes the whole story doubtful. It was contended as such that may be that the shots were fired from a very close range in exercise of the right of private defence by the petitioner or any of the family members and that the shots could have been fired after the petitioner and others had found themselves being attacked by the informant and others. The question of exercise of right of private defence being a mixed question of fact and law, has to be decided by the trial court after it has taken evidence and identified the possibilities which may be arising out of it. There might be some anomalies in the medical report as regards the manner of occurrence but for the present purpose of granting or not granting bail to the petitioner it may not be material. In view of the allegation appearing directly made against the petitioner, prayer for bail is refused. Anil/ (Dharnidhar Jha, J.)