ASHOK SRIVASTAVA, J. - (1.) THIS bail application has been moved on behalf of the applicant, Satpal, who is involved in Case Crime No. 1645 of 2009, under Section 302 I.P.C., Police Station Khatauli, District Muzaffar Nagar.
(2.) THIS bail application was heard on 12.09.2011. On that date, Mr. Ashok Nath Tripathi, learned counsel for the applicant, Mr. Amit Daga, learned counsel for the complainant and learned A.G.A. were present and they were heard. The complainant of this case is one Malkhan. The deceased Bhagwan Sahai was his father. The deceased Bhagwan Sahai was killed sometime in the night intervening 13-14th October, 2009. On 13.10.2009 the deceased had gone to the temple. It appears that he used to spend his night in the said temple. On 14.10.2009 in the morning when the complainant went to the temple he did not find his father there. He alongwith other villagers started searching him. They found that the dead body of Bhagwan Sahai was lying in the agricultural field of one Rakesh. An F.I.R. was lodged with the police on 14.10.2009 at 9.30 A.M. against unknown persons. The Panchayatnama of the deceased was prepared on 14.10.2009. The witnesses Abhay Singh was one of the Panchas. The investigation of the case proceeded and Abhay Singh was examined under Section 161 Cr.P.C. and he was examined by the I.O. only in respect of the Panchayatnama and the memo through which the plain and blood soaked earth was taken from the spot. On 17.10.2009 i.e. after a lapse of some four days, the complainant Malkhan again approached the I.O. of the case and informed him that the above-mentioned Abhay Singh and one Ratan had met him and told him that on 14.10.2009 at about 4.30 A.M. they (Abhay Singh and Ratan) heard a sound of firing and when both of them ran towards the place from where the sound of firing had come, they found that one Kallu and Naresh alongwith another person were coming from that side. Kallu was holding a country made pistol in his hand and when they (Abhay Singh and Ratan) enquired from Kallu as to why he was carrying the pistol, he replied that he had killed his enemy. Thereafter Kallu alongwith the unknown person and Naresh went away. Abhay Singh was further examined by the I.O. under Section 161 Cr.P.C. on 16.10.2009. On that date he only named Kallu and Naresh in his statement. On 20.10.2009 the name of the applicant surfaced for the first time in the statement of Ratan and Abhay Singh. Thereafter all the three accused persons were arrested and on the pointing out of the applicant a country made pistol, said to have been used in the alleged crime, was recovered.
(3.) IT has been submitted from the side of the applicant that the applicant is in jail since 30.10.2009, that he is innocent and has been falsely implicated in this case due to enmity. It has further been submitted that the witness Abhay Singh is a witness of Panchayatnama and at the time of preparation of the inquest report he did not disclose it to anyone that he had seen the applicant coming from the side of the place where the dead body of the deceased was found. It has further been submitted that even in his application dated 17.10.2009 Malkhan has not disclosed the name of the applicant. It has further been submitted that for the first time when the witnesses were examined for the third time by the I.O. the name of the applicant has surfaced. Learned counsel for the applicant has vehemently argued that it is a case in which no one has seen the real incident of murder. He has further submitted that it is totally a case of circumstantial evidence. There is no evidence on record regarding the motive or enmity on the part of the applicant against the deceased. It has also been contended that though a recovery of a country made pistol has been shown from the custody of the applicant but the same has not been correlated to the alleged offence with the help of any forensic report.;