IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40539 of 2009 MD.HABIB, son of Late Ilyas, resident of village- Kala Balua, P.S. Raniganj, District- Ararai…. Petitioner. Versus THE STATE OF BIHAR with Cr.Misc. No.41875 of 2009 MD.KAMIL @ KAMIL, son of Md. Habib, resident of village- Kala Balua, P.S. Raniganj, District- Araria… Petitioner. Versus STATE OF BIHAR ----------- 3. 23.02.2010 Heard counsel for the petitioner, counsel for the State as also counsel for the informant in both the cases. The prayer for anticipatory bail of the petitioners for an offence under Section 302/34 of the Indian Penal Code and Section 27 of the Arms Act has been pressed by learned counsel appearing for them in these two cases primarily on the ground that the First Information Report lodged by the informant, who is not an eye witness to the occurrence, would not inspire confidence, inasmuch as, the role assigned to the petitioners of main assailant has been based on the alleged version of the deceased himself who is said to have disclosed the name of the two petitioners to have caused fire-arm injury on his person whereas in 2 course of investigation by the police, a few persons have stated that the deceased had not named any person to have shot on him but had only stated to them that the fire-arm injury on his person was caused by his enemies. Counsel therefore in both the cases would submit that the entire prosecution version is tented and false and as such, the petitioners will be entitled for privilege of anticipatory bail. In this case, case diary was called for and learned counsel for the State has extensively referred to the statement of the witnesses from which it becomes clear that the deceased had received fire-arm injury on his person while he was in his house along with other family members including his wife, sons and daughter-in-laws. From a bare perusal of the statement of such persons in paragraph nos. 25 to 29 of the case diary, it becomes clear that all of them had unequivocally stated before the police that the deceased after sustaining fire-arm injuries was throughout conscious and had named these two petitioners to be his assailants. The brother of the deceased 3 Nezammudin in paragraph no.25 of the case diary, the son of the deceased Md. Zaved in paragraph no.26 of the case diary, Chuni Begam, the younger brother-in-law of the deceased in paragraph no.28 of the case diary and Bibi Tarana, the elder daughter-in-law of the deceased in paragraph no.29 of the case diary who along with the informant Md. Ekram another brother of the deceased were in the house have remained consistent in their statement before the police that the deceased has disclosed the names of both the petitioners as his assailants. They being the close family members and living in the same house were definitely in a better position to know the details of such occurrence including identification of the assailants by the deceased and their version cannot be doubted on the basis of the statement of Md. Moinuddin, the cousin of the deceased or Md. Razanul, his nephew who were not living in the same house and had only reached the place of occurrence on hulla and therefore, their statement that the deceased had not named any person rather had only stated that he was shot at by some of his enemies cannot be made 4 the sole basis to discredit the version of a number of persons who had claimed that the deceased had named these two petitioners as his assailants. In this respect, it has to be taken into account that the deceased was immediately carried to the hospital where he had succumbed to injuries and the two witnesses, Md. Moinuddin and Md. Razanul, the cousin and nephew of the deceased had not accompanied the deceased to the hospital whereas other family members whose statement has been recorded in paragraph nos. 25 to 29 along with informant had remained throughout with the deceased either in the house or in course of his being taken from the house to the hospital and as such, they were in a better position to state the facts with regard to the identification of these two petitioners by the deceased himself to be his assailants. Counsel next contended that some of the witnesses had also given names of two more persons to be the assailants of the deceased and when they, namely, Md. Zainuddin @ Janna and Md. Afroz have already been granted anticipatory bail by this Court by an 5 order dated 9.11.2009 in Cr. Misc. No. 35685 of 2009, the petitioners also would be entitled for same privilege of anticipatory bail. Such statement of the learned counsel for the petitioners, however, cannot be accepted, inasmuch as, from reading of the statement of the informant as also the close family members in paragraph nos. 25 to 29, it becomes clear that while all of them were consistent that the deceased had named only these two petitioners to be the assailants, some of them had also named the aforementioned Md. Zainuddin @ Janna and Md. Afroz to be the members of the mob along with these two petitioners who were found to be running away from the place of occurrence after causing firearm injury on two motorcycles. Thus, from their statement, it would be clear that the case of Md. Md. Zainuddin @ Janna and Md. Afroz stands on different footings and as such, grant of anticipatory bail to them cannot be made ground for also allowing the prayer of anticipatory bail of the petitioners. In course of investigation, there 6 has been however one eye witness who has given her version which is not based on the disclosure of name of the assailants by the deceased. She is the wife of the deceased who has named both the petitioners along with two others to be four persons who had arrived in the house in the day light and amongst them, the petitioner no.1 was said to have opened fire on the persons of the deceased. This witness, however, has claimed that after seeing his husband being shot and in pool of blood, she had lost her consciousness and therefore, she had deposed only to the part of occurrence which she had seen. Since the name of these two petitioners also figured in such statement of the wife of the deceased and is in conformity with the statement of other witnesses who had also revealed the names of these two petitioners to be the assailants as disclosed to them by the deceased himself, this Court at the stage of considering the prayer for anticipatory bail by adopting the rules of removing chaff from the grain would still find that there is a direct allegation against these two petitioners of opening firearm injury on the 7 person of the deceased which also stands corroborated from his postmortem report. Thus, upon taking into account all these facts and circumstances, this Court is not inclined to grant anticipatory bail to the petitioners and such prayer of the petitioners, namely, Md. Habib and Md. Kamil @ Kamil is hereby rejected. It however goes without saying that nothing said in this order would prejudice the petitioners in case they would surrender and seek their regular bail. kanchan (Mihir Kumar Jha, J.)