RAVINDRA SINGH, J. - (1.) THIS bail application has been filed by the applicants Rakesh Kumar and Dholi alias Dholu alias Jogendra with a prayer that he may be released on bail in case crime No. 5 of 2006, under Sections 302 and 506 I.P.C., P.S. Sector 49, Noida, District Gautam Budh Nagar.
(2.) THE prosecution story, in brief, is that the F.I.R. of this case has been lodged by one Lakhan on 15 -1 -2006 at 6.45 a.m. in respect of the incident which had occurred in the night of 14/15 -1 -2006. The F.I.R. was lodged against the applicants alleging therein that in the night of 14/15 -1 -2006 the first informant and his brother deceased Satish were going to their village on a motor -cycle after closing their shop. When they reached near the Bahuguna Apartment at about 11.30 p.m. they were stopped by the applicants and the first informant was asked by them to leave that place because they had to talk with the deceased. The first informant left that place relying upon the applicants. As soon as he reached to his house, two persons namely Chandar and Mahendra gave an information that his brother Satish was being beaten by the applicants and one unknown person by using fatta (wooden piece) and bottles. The first informant made hue and cry but a threat of his life by exhorting that the deceased has been murdered he shall also be murdered, was extended by the miscreants and they ran away from the place of occurrence. According to post -mortem examination report the deceased has received 13 injuries, in which injuries No. 1 to 10 are lacerated wounds and injuries No. 11 to 13 are contused abrasions. Heard Sri Manish Tiwari and Sri A.K. Mishra learned Counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Ravindra Nath Rai and Sri Ashok Kumar Rai learned Counsel for the complainant.
(3.) IT is contended by the learned Counsel for the applicant that: (i) The presence of the first informant and other witnesses at the alleged place of occurrence was highly doubtful. The deceased was murdered at a lonely place by some unknown persons and in the morning the dead -body was found, thereafter, the F.I.R. was lodged. (ii) The distance of the house of the first informant from the place of occurrence was 7 kms. In case the witnesses Chandar and Mahendra had seen the alleged occurrence and went to the house of first informant to give the information and on their information the first informant came at the place of occurrence, it was not possible after such a long period the applicants and other co -accused were continuously beating to the deceased and waiting for the arrival of the first informant and other witnesses. (iii) The I.O. has recorded the statement of Pappu. He did not disclose any material facts to the I.O. Thereafter, the mukhvir khas was interrogated and the I.O. brought the name of the applicants into light on the basis of doubt and suspicion, because they were involved in some criminal cases, but subsequently, Pappu has been made an eye -witness. He stated that the applicants were causing injuries on the person of the deceased by using Patti, thereafter, the statement of Chandar and Mahendra were recorded. They also stated that the injuries were caused by the applicants on the person of the deceased by patta blows. (iv) The prosecution story is not corroborated by the medical evidence, because the nature of the injuries shows that such injuries may not be caused by patti blows. (v) The statements of the witnesses Chandar and Mahendra were recorded on 20 -1 -2006. There is delay in recording the statements of the witnesses and there is no plausible explanation, which shows that they have seen the alleged occurrence. (vi) There are material contradictions in the statements of the witnesses and the F.I.R., because in the F.I.R. it was alleged that the injuries were caused by patta, bottle and hathiyar, but in the statements of witnesses Chandar and Mahendra the injuries were caused by patta and frame, but they have not disclosed the name of Pappu as a witness and a new weapon frame has been introduced. (vii) There are some insertion and interpolation in the case diary which shows that the F.I.R. and other proceedings of the investigation were ante dated. (viii) The recovery of frame and patta shown by the I.O. jointly from an open place which was easily accessible to all is not in accordance with the provisions of Section 27 of the Indian Evidence Act. The recovery was planted and the recovery of the blood stained cloths was also planted by the IO and no chemical examination has been done. All the aforesaid cloths, frame and patta were not chemically examined and without doing the same the charge -sheet has been submitted. (ix) The applicants have been falsely implicated and the alleged evidence against them is not credible, therefore, they may be released on bail. ;