RAVINDRA SINGH,J. - (1.) HEARD Sri V.P.Srivastava, Senior Adcocate, assisted by Sri Prem Shanker Kushwaha, learned counsel for the applicant, learned AGA and Sri Chandra Shakhar Kushwaha, learned counsel for the complainant.
(2.) THIS bail application has been moved by applicant Nanak Chandra with a prayer that he may be released on bail in case crime no.75 of 2005, under sections 302 and 307 IPC, P.S.Bewar, District Mainpuri. The facts in brief of this case are that the FIR has been lodged by Bhagwan Das on 21.03.2005 at about 11.45 a.m. The distance of police station was about 3 km. from the alleged place of occurrence, the applicant and co- accused Deep Chandra are named as accused in FIR, one accused was unknown . It is alleged that son of Tulsi Ram was killed by the applicant and others about 8 years prior to the incident, thereafter Tulsi Ram, and his family members had left the village, Maddapur Khas. Tulsi Ram is cousin brother of the first informant. Tulsi Ram and his family members were persuaded by Brijesh to live in their village, because the murder of Krishna Pal has become too old one. On 21.03.2005, the family of Tulsi Ram came to the village, first informant and his son Kamal Singh and Brijesh also went to the house of Tulsi Ram to meet them. In the meantime, the applicant armed with DBBL Gun along with his son Deep Chandra and one unknown miscreant, who were armed with 'Aslaha' came there and dragged out deceased Brijesh from 'Verandah', in his rescue Kamal Singh also came out. They were shot at by the applicant and other co accused persons. Consequently, Kamal Singh Brijesh became injured. The alleged incident was witnessed by Tulsi Ram and his sons Ashok and Raju. Both Brijesh and Kamal Singh were taken to Mainpuri to provide medical aid, but before reaching Mainpuri, Brijesh succumbed to his injury. The applicant and other co-accused having an old enmity with the deceased, because the deceased had persuaded to Tulsi Ram and his family to come to their village. On account of this incident, the atmosphere of the village became change with terror and fear. According to the post mortem examination report, the deceased had sustained 6 ante mortem injury in which injury no. 1, 3 and 4 are firearm wounds of entry, the injury no.2 and injury no. 5 are firearm wounds of exit. The injury no.6 was lacerated wound (Gutler Shaped) on dorsal aspect left foot. The cause of death was due to shock and haemorrhage, as a result of ante mortem firearm injuries. Kamal Singh had sustained 2 firearm wounds of entry. The applicant applied for bail before learned Sessions Judge, Mainpuri, who rejected the same on 01.07.2011. It is contended by learned counsel for the applicant that applicant is innocent, he has not committed the alleged offence, but he has been falsely implicated in the present case due to old enmity. The investigation of this case was initially initiated by the local police, but it was transferred to C.B.C.I.D. The prosecution is not corroborated by the spot inspection note and site plan. According to the site plan, the alleged occurrence has taken place (place A) on the road side. The prosecution story is not supported by the post mortem examination report. According to the statement of the witness recorded under section 161 Cr.P.C. also appears that they have not seen the alleged incident. The statement of the witness and injured, Kamal Singh are self contradictory . In the year, 1995, the nephew of the applicant was murdered by the relative of the family of Tulsi Ram. Thereafter, the son of the applicant was murdered. The applicant was falsely implicated in the case of murder of son of Tulsi Ram .Deceased Brijesh was also accused in that case. It has been concealed in the FIR as well as in the statement of witness Rajesh Kumar son of Kamal Singh, Smt. Sunita, wife of deceased have been recorded by I.O., but no independent witness of the locality was recorded by I.O. The statement of Tulsi Ram has also been recorded, who has not supported the FIR version. According to his statement in which unknown persons have committed the alleged incident.
(3.) THE statement of Raju @ Rajesh and Ashok Kumar, sons of Tulsi Ram have been recorded, they also did not sport the prosecution version. According to them, 4 unknown persons have committed the alleged incident. The I.O. has recorded the statement of some witnesses, Raj Kapoor, Sushil Kumar, Prabhu Dayal and Virendra Singh, they have not supported the prosecution story. The son of the applicant was the student of High School and he appeared in the Examination of U.P.Board on 21.03.2005 from the Jasmai Inter College, which is at a distance of 25 Km. from the alleged place of occurrence. He was minor boy, aged about 14 and 1/2 years' old. The I.O. has recorded the statement of Head Clerk of the aforesaid college and examined the record and came to the conclusion that co accused Deep Chandra has appeared in the Examination of High School on 21.03.2005 from 7.30 a.m. to 10.30 a.m.;