- (1.) RAVINDRA Singh, J.;- Heard Sri Shakti Dhar Dube, Sri Neeraj Dube, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Amit Daga, learned counsel for the complainant.
(2.) THIS bail application has been moved by the applicant Afsad with a prayer that he may be released on bail in Case Crime No. 197 of 2011 under section 302 I.P.C., Police Station Saradhna , District Meerut. The facts, in brief, of this case are that FIR has been lodged by Naim on 16.5.2011 at 10.45 P.M. in respect of the incident allegedly occurred on 16.5.2011 at about 7.45 P.M. The applicant and 3 other co-accused are named in FIR, it is alleged that the deceased was carrying on a shop in the name and Style of Indian Steel House, Mohalla Belhasan, Sardhana, the adjoining shop was of Naushad. Both the persons were doing the business of the same type. There was a business rivalry, for which the co-accused Naushad had extended the threat to the deceased. On 16.5.2011 at about 7.45 P.M., the deceased after closing the shop was going in the company of Hashim and Shahnawaz Ali, when they reached near ATM of the State Bank, the applicant and other co-accused persons already sitting there and waiting the arrival of the deceased came there and discharged the shots by their country made pistols, after hearing the sound of firing, the first informant, the witnesses and other persons shouted, chased the accused persons who fled away. The deceased sustained injuries and fell down,he was taken to Ishwar Nursing Home, but he referred to Meerut by the doctor, the deceased was brought to Meerut and admitted in F.M.Hospital, where he succumbed to his injuries. According to post mortem examination report, the deceased had sustained 8 ante mortem injuries in which 7 wounds are gunshot wounds of entry and one wound is gun shot wound of exit, the applicant applied for bail before the learned Sessions Judge, the same was rejected by learned In-charge Sessions Judge, Meerut on 10.8.2011.
(3.) IT is contended by learned counsel for the applicant that according to the FIR, the first informant was not eye witness, he simply mentioned in the FIR that after hearing the sound of firing he and the witnesses Hashim, Shahnawaj and other persons chased the accused persons, but accused persons fled away. According to the FIR, the alleged incident was witnessed by only Hashim and Shahnewaz. The statement of Hashim was recorded under section 161 Cr.P.C.in which he stated that alleged occurrence had taken place in the night at about 7.45 P.M. on 16.7.2011, though he stated that he along with the deceased and the witnesses Shahnawaz Ali were going, at that time they were chatting also, but did not disclose any source of light. According to his statement, all the four persons discharged the shots but according to his statement accused persons have discharged about 4 shots, whereas according to the post mortem examination report, the deceased had sustained 7 gunshot wounds of entry. The statement of second witness Shahnawaj has also been recorded under section 161 Cr.P.C., he stated that on 16.5.2011, in the night at 7.45 P.M.when they reached near A.T.M.of State Bank, the applicant and other co-accused persons shot dead the deceased. On shouting, the fist informant and other persons also came there , the attempt was made to over power, the accused persons but they successfully escaped. There is material contradiction in the statement of eye witnesses. None of them is injured witness, their presence at the place of occurrence is highly doubtful. Both the witness have not disclosed any source of light but they have clearly stated that the alleged incident has occurred in the night at about 7.45 P.M. The specific case of prosecution is that the alleged occurrence has taken place near ATM of State Bank but in the site plan, ATM of State Bank has not shown by I.O. any where. It also shows that there was no ATM of State Bank and other witnesses have not seen alleged incident. The injuries caused to the deceased by some unknown miscreants,thereafter the FIR of this case has been lodged against the applicant due to business rivalry.;