- (1.) K. N. Ojha, J. Heard Sri Jagdish Singh Sengar learned Senior Counsel assisted by Sri Ravindra Sharma and Sri K. S. Hanif, learned Counsel for the applicant and learned Government Advocate Sri Vijai Shanker Mishra and have gone through the record.
(2.) THE applicant Mohd. Ashraf @ Khalid Azeem is in jail in Crime No. 34 of 2005, under Sections 147, 148, 149, 307, 302, 120-B, 506 I. P. C. and Section 7 Criminal Law Amendment Act, Police Station Dhoomanganj, District Allahabad, and is facing Sessions Trial Nos. 13 of 2006, 14 of 2006, 15 of 2006 and 24 of 2006 in the Court of Additional Sessions Judge, Court No. 14, Allahabad. According to prosecution Smt. Pooja Pal lodged FIR against applicant, Atiq Ahmad and 7 or 8 others under Sections 147, 148, 149, 307, 302, 120-B, 506 I. P. C. and Section 7 Criminal Law Amendment Act, Police Station Dhoomanganj, District Allahabad, on 25-1-2005 at 4. 30 p. m. containing the fact that her husband Raju Pal, who was M. L. A. from Bahujan Samajwadi Party was coming alongwith others to his house on 25-1-2005 at 3. 00 p. m. Raju Pal himself was driving the car. It was stopped and the applicant committed his murder by causing fire-arm injuries to him. Devi Lal Pal and Sandeep Yadav, who were with her husband also died. Sri Singh Sahab and wife of her husband's friend, who were sitting in the car, were seriously injured. Another vehicle of police guard was behind the car of her husband. In FIR it was got written that her husband was got murdered by the brother of the applicant, who is Member of Parliament. It was also disclosed in the FIR that her husband usually told her that the applicant and his brother were intending to get him murdered and earlier to it three times attempts were made for murder of Raju Pal. It was also disclosed that threatening was extended in case FIR was lodged. After the FIR was lodged investigation was made and Sessions Trial is proceeding in the Court of learned Additional Sessions Judge, Court No. 14, Allahabad. The statements of Saifulla, Smt. Rukhsana, Mohd. Sadique, Om Prakash Pal, Nand Kishore head constable Amarnath, head constable, Mahendra Patel @ Budhdhi Lal and Umesh Pal were recorded. Copies of the statements of these witnesses have been filed. The eye-witnesses, who were named in the FIR admitted their presence at the time of the occurrence but all of them stated that they did not know as to who were the real culprits causing fire- arm injuries resulting into death of Raju Pal, the husband of the informant, and two others. All these witnesses were declared hostile. The prosecution was afforded opportunity to cross-examine the witnesses.
(3.) IT has been submitted by learned Government Advocate Sri Mishra that in this case statements of the informant Smt. Pooja Pal, mother of the victim Raju Pal, Investigating Officer, and doctor are still to be recorded. Therefore, at this stage it cannot be said that there is no evidence against the applicant. IT is further submitted that the deceased had defeated the applicant in the election of M. L. A. and therefore, the applicant was nursing bad blood and this is the reason that fire-arm injuries were caused by the applicant resulting into death of the victim Raju Pal and two others. It has been submitted by learned Counsel for the applicant that when there is no fact witness about the occurrence against the applicant and all those witnesses, who have been examined, have been declared hostile. Even the witnesses, who were body guard of the victim and the witnesses, who are said to have suffered fire-arm injuries and were sitting in the car of the victim do not make statement against the applicant mere statement of doctor, investigating officer, wife and mother of the victim Raju Pal, who are witnesses of motive only, cannot be said to be sufficient to make out any prima facie case against the applicant. Mere motive or formal evidence in a case cannot be said to be sufficient for conviction or to hold that a particular accused is involved in the crime, when in this case all the fact witnesses have been examined by the learned Additional Sessions Judge and copies of which have been filed show that all of them have been declared hostile by the prosecution and none of these witnesses have supported the case of the prosecution, merely on the basis of the statement, which is of formal in nature, it would not be proper to detain the applicant in jail, however, it would be proper if a condition is imposed on the applicant before he is enlarged on bail, the applicant will not visit near the residence of the informant.;