- (1.) The appellant Sohan Pal has preferred the Criminal Appeal No. 751 of 2012, the appellant Hari Singh and appellant Gulfam Singh have preferred the Criminal Appeal No. 587 of 2012 and the appellant Chandra Prakash has preferred the Criminal Appeal No. 820 of 2012 against the impugned judgment and order dated 30.1.2012 passed by learned Addl. Sessions Judge, Court No. 12 (X-cadre), Budaun in S.T. No. 809 of 1998 connected with 382 of 2001 and 810 of 1998. In all the criminal appeals the appellants have moved their bail applications separately, the same are being disposed of by a common order. It is contended by learned counsel for the appellant that the FIR of this case has been lodged by Durvesh Kumar P.W. 1 on 22.4.1998 at 1.55 P.M. in respect of the incident allegedly occurred on 22.4.1998 at about 12.40 P.M. alleging therein that the deceased Lala Ram, father of the first informant working as a Head Master at Uchch Prathmik Vidyalaya, was returning after performing his duty to his house at about 12.40 P.M. Near house of Babu Ram some miscreants were waiting his arrival, they fired at him, on firing Sarnam P.W. 3, Vijay, Bharat Singh, P.W. 2 and some other persons came at the place of the incident. Along with other miscreants the appellants Chandra Prakash, Hari Singh armed with 315 bore country made pistols, the appellant Gulfam Singh was armed with licensed gun, the appellant Sohan Pal and Vijay son of unknown armed with 315 bore pistols. After causing the injuries to the deceased the appellants Hari Singh, Chandra Prakash and Sohan Pal discharging the shots left the place of the incident on a motorcycle. The appellant Gulfam and accused Vijay were legging behind the motorcycle at the time of the flying away, But on account of sand, after covering the short distance the motorcycle fell down, villagers developed their pressure. To reduce the pressure the miscreants who were flying away ahead opened the fire towards the villagers. Accidentally the accused Vijay sustained gun shot injury, who died on spot. The miscreants were chased by the villagers and after chasing the appellant Chandra Prakash was apprehended along with 315 bore country made pistol, but his other companion namely Gulfam Singh, Hari Singh and Sohan Pal successfully escaped towards the Hyderabad by discharging the shots. The deceased in a injured condition was taken to PHC Gunnaur where he was declared dead by the doctor. The miscreant Vijay who also died on the spot was resident of Karanvaas. According to the post mortem examination report and deposition of Dr. R.D. Dimari, P.W. 4, the deceased had sustained four ante mortem injuries in which injury No. 1 was fire arm wound of entry, it was having blackening, injury No. 2 was its exit wound, injury No. 3 was abrasion on the hip and injury No. 4 was multiple pin headed abrasion on right side shoulder. In support of the prosecution version 11 witnesses have been examined and from the side of the defence seven witnesses namely Jaiveer Singh, D.W. 1, Babu Ram D.W. 2, Iftikhaaruddin D.W. 3, Suresh Sharma, D.W. 4, Suresh Kumar Sharma D.W. 5, Balister D.W. 6 and Naresh Chandra Bhardwaj D.W. 7 have been examined. According to the statement of D.W. 1, the appellant Gulfam Singh was doing the work of the measurement of land and remained in his company on 21.4.1998 and 22.4.1998, the appellant Gulfam Singh stayed in his village on 23.4.1998, he came to know that the deceased was killed. The D.W. 2 Babu Ram deposed that the deceased was Head Master of a school, he was shot dead by the miscreants on 22.4.1998 at about 12 O' clock in day. After sustaining the injury the deceased was surviving, at that time he also reached there, he did not see the miscreants who caused gun shot injuries on the person of the deceased. The information was sent to the house of the deceased which was at a distance of six hundred paces from the alleged place of the incident. Thereafter the ladies of the house of the deceased came at the place of the incident and at about 1.00 P.M. Durgesh son of the deceased came at the place of the incident. The associates of the deceased Lala Ram had committed the murder of Vijay who had come on a motorcycle and the appellant Chandra Prakash was beaten. The D.W. 3 Iftikhaaruddin deposed that in compliance of the order passed by S.D.M. Gunnaur, the appellant Gulfam Singh had done the work of measurement. The D.W. 4 Suresh Sharma, Lekhpal brought the record of the appellant Gulfam Singh from the tahsil showing the reference of the measurement. The D.W. 5 Suresh Kumar Sharma proved the exhibit Kha-6. The letter written by S.D.M. Gunnaur to District Magistrate, Budaun. D.W. 6 Balister deposed that the appellant Gulfam Singh, Lekhpal had stayed at the house of Village Pradhan Jaiveer Singh, he had measured the land and got removed the encroachment. The D.W. 7 Naresh Chandra Bharadwaj proved the exhibit Kha-7, he deposed about the injuries of the appellant Chandra Prakash. The plea of alibi the appellant Gulfam Singh has been successfully proved.
(2.) It is further contended that in the present case the investigation was completed by C.B.C.I.D. and the charge sheet was submitted only against the appellant Chandra Prakash. Other appellants were not charge sheeted, they have been summoned by the trial court in exercise of powers conferred under section 319 Cr.P.C. The alleged occurrence has not taken place as alleged by the prosecution, it has occurred in some other manner. The explanation given by the prosecution in respect of the death of the accused Vijay is not deliberately. Even the prosecution story is not fully supported by the post mortem examination report. The presence of the witnesses at the alleged place of the incident was highly doubtful. The witnesses are highly partisan, they are not reliable at all. The prosecution has failed to prove its case beyond the shadows of the doubt.
(3.) In reply of the above contention, it is submitted by learned A.G.A. that the alleged occurrence has taken place in a broad day light, FIR has been promptly lodged, it is a case in which all the appellants in a pre planned manner participated in commission of the murder of the deceased. By the villagers the appellant Chandra Prakash was apprehended on the spot. In firing done by the miscreants towards the villagers one of the miscreant namely Vijay Singh sustained injuries and died on the spot. The plea of the alibi taken by the appellant Gulfam Singh has not been successfully proved. The prosecution has successfully proved its case beyond the shadows of the doubt. It is a case in which the appellant Chandra Prakash has been apprehended immediately after commission of the alleged offence. There is no reason to dis-believe the presence of the witnesses. During investigation the charge sheet was not submitted against the appellants Sohan Pal, Hari Singh and Gulfam Singh without any proper reason whereas they were named in the FIR as accused. In such circumstances, the appellants may not be released on bail.;