JUDGMENT :

1. Heard Sri P. C. Srivastava, learned counsel for the applicant; Sri Rajiv Lochan Shukla, learned counsel for the informant; learned A.G.A. for the State and perused the material on record.

2. In the first information report eight persons, including the applicant, have been implicated for causing the offence of attempt to murder, rioting armed with deadly weapons and forming illegal assembly for prosecution of a common object of murder. There is allegation in the first information report that uncle of informant, Mukesh Agarwal, was sitting on pavement of his house and talking to one, Swadesh, when co-accused, Deepesh Sethiya, came on his Scorpio car and co-accused, Shubham Tamrakar, came out of the car and directed one car standing to be removed and he started abusing. Co-accused, Akhilesh Vishwakarma was also with him. The father of the informant on hearing the noise came out. At the same time other brothers of Deepesh Sethiya, namely, Rakesh Kumar, Vinod Kumar, Manish Kumar, Manoj Sethiya, Kallu @ Sajiv Sethiya etc., came out. Deepesh Sethiya and Rakesh Kumar fired which did not hit any one and in the commotion which followed every one tried to protect themselves from Sethiya brothers. All the accused persons fired on the father of informant, Ashok Agarwal and uncle of the informant, Mukesh Agarwal. Ashok Agarwal, the father of the informant, suffered number of injuries and the uncle of the informant suffered injuries in his leg. Subsequently, father of the informant, Ashok Agarwal, died and implication of the accused persons was also made under Section 302 I.P.C in addition to earlier implication under Sections 147, 148, 149, 307, 302, 504 I.P.C, Section 7 Criminal Law Amendment Act.

3. Learned counsel for the applicant submitted that the father of the informant and his uncle both sustained injuries. On the body of the father of informant following injuries were found :-

(a) Septic shock with abdominal sepsis with acute kidney injury.

(b) Status post exploratory laparotomy.

(c) Alleged history of firearm injury on abdomen and right thigh.

(d) Hemoperitoneum with multiple jejunal perforation due to firearm injury.

4. In the statement of the informant, Aman Agarwal, recorded under Section 161 Cr.P.C., no specific role was assigned to the applicant. The role of firing was assigned to co-accused, Deepesh and Rakesh. In the statement of eye-witness, Amit Agarwal, also he assigned general role to all the accused persons. The injured, Mukesh Agrawal, also did not assigned any specific role to the applicant in his statement recorded by Investigating Officer.

5. Learned counsel for the applicant submits that applicant has been falsely implicated in this case along with his co-accused brothers, including, Deepesh Sethiya and Rakesh Sethiya, who were assigned the role of firing but it did not hit any one. He has submitted that the entire family has been falsely implicated in this case for ulterior motives. Applicant is in jail since 15.06.2021 and has no criminal history to his credit.

6. Learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of Mariadasan and others Vs. State of Tamil Nadu, 1980 SCC (Crl.) 523 and has submitted that the Apex Court held in this case that where sudden heated altercation and fight between two parties occurred and deceased tried to intervene, was assaulted on the spur of moment, no unlawful assembly can be said to have been formed at any time with common object of assaulting and killing the deceased. He has further relied upon the judgement of Apex Court in the case of Puran Vs. State of Rajasthan, 1975 SCC (Crl.) 750, wherein the Apex Court held that in the case of sudden and free fight constructive liability cannot be imposed as per Section 149 I.P.C. Reliance has also been placed on the judgement of the Apex Court in the case of Sherey and others Vs. State of U.P., 1991 SCC (Crl.) page 1059, wherein the Apex Court held that where number of accused arme