- (1.) VINOD Prasad, J. Jai Prakash alias Pintoo has filed this bail application in this Court for his release on bail in Crime No. 205 of 2005 under Sections 302, 120-B IPC, P. S. Civil Lines, District Allahabad (Now S. T. No 97 of 2006) pending before Additional Sessions Judge, Court No 15, District Allahabad.
(2.) THE prosecution case against the applicant in brief is that the informant Rakesh Kumar Singh is a resident of 255 A Malak Raj, Ram Bagh, P. S. Keed Ganj, District Allahabad. On 20-9-2005 at 8. 30 p. m. while he was with his friend Mahesh Yadav r/o 18/20 Tashkand Margh, PS Civil Line Allahabad, Mahesh Yadav aforesaid received a telephone call that his brother Suresh Singh Yadav has been shot at infront of the house of Wilson Kapoor, situated at 10/24 Sardar Patel Marg, Allahabad. THE informant alongwith Mahesh Yadav rushed to the place of incident and found his brother Suresh Singh Yadav lying in a pool of blood at the alleged spot. On inquiry being made Dheeraj s/o Munni Lal and Deepu s/o unknown informed them that they had arrived at the place of occurrence alongwith Suresh Singh Yadav and after some merry making when they were returning back then Ganesh Yadav s/o Buddhan Yadav alongwith one of his companion Dheeraj Mehtar s/o Mooley had shot at Suresh Singh Yadav and had escaped. Suresh Singh Yadav was injured in the neck by the said shot. He was taken to the Swaroop Ram Hospital Allahabad and thereafter to Priti Hospital for treatment but finding his condition serious, he was carried to Lucknow by his brother Mahesh Yadav aforesaid in an ambulance. With the said allegation Rakesh Kumar Singh informant scribed the FIR and lodged it at P. S. Civil Lines, District Allahabad. His FIR was registered as Crime No. 205 of 2005 under Section 307 IPC. THE police commenced the investigation and during the course of it the I. O. went to Lucknow and recorded the statement of the deceased under Section 161 Cr. P. C. after a gap of four days from the date of the incident. Meanwhile the injured was operated upon by the doctor for treatment of his injury. It is also the prosecution case that the deceased in his own handwriting had written a note that it was the present applicant who had shut him and had handed it over to his brother Mahesh Yadav. Further the prosecution case is that the subsequent investigation revealed that Ganesh Yadav and Dheeraj Mehtar were wrongly nominated in the case and in fact the real culprits were the present applicant alongwith Munna Yadav and Ashish Jaiswal alias Natey. THE prosecution case further is that deceased was a practicing advocate and was registered with U. P. Bar Council having Registration No. 1370/08. THE injured Suresh Singh Yadav at last scummbed to his injuries and died on 13-10-2005 at 6 a. m. His post-mortem report reveals that he had sustained gun shot injuries. Further the prosecution case is that the I. O. found prima facie case against the present applicant and submitted a charge-sheet in the Court and now prosecution evidence is being led in the said trial as S. T. No. 97-2006 pending before Additional Sessions Judge, Court No. 15, Allahabad and two witnesses have already been examined in the case. On the said factual matrix, as stated above, the applicant has prayed for his release on bail. I have heard Sri J. S. Sengar, Advocate assisted by Sri Ajeet Kumar Singh Solanki, learned Counsels for the applicant as well as Sri Raghavendra Dwivedi learned Counsel for the informant and learned AGA in opposition. In support of this bail application Sri J. S. Sengar contended that the applicant is not named in the FIR, where in two other persons were named and the complicity of those two named accused persons Dheeraj and Deepu have been found to be false. He further contended that after receiving the injury the deceased went into coma and never regained consciousness till he survived and therefore the alleged statement under Section 161 Cr. P. C. of the deceased as well as alleged note alleged to be scribed by him are manufactured pieces of evidences and cannot be accepted. He further submitted that according to the prosecution case statement of the deceased under Section 161 Cr. P. C. was recorded subsequent to the alleged note by him but the deceased has not mentioned about the said note in his statement under Section 161 Crpc. He further argued that the alleged note is from various pens and in different ink and cannot be accepted to have been written by the deceased. He further submitted that the deceased was in coma through out till his last breath. He submitted that there is no eye-witness account of the incident implicating the applicant and the evidences against him are the alleged note and statement under Section 161 Cr. P. C. , which are manufactured and cooked up evidences. He further submitted that there is no report of Trauma Centre that the deceased was conscious at the time of his admission there.
(3.) LEARNED AGA and learned Counsel for the informant refuting the submissions made by the learned Counsel for the applicant contended that in this case the I. O. has recorded the statement of the deceased after he was operated upon after a gap of four days. They further contended that the I. O. has mentioned in the case diary that before recording the statement of the deceased under Section 161 Cr. P. C. , he had sought the permission of the concerned doctor and the deceased gave his statement in 45 minutes. They further contended that there was illicit relation between the applicant and niece of the deceased, which was objected to by the deceased motivated by which the deceased was murdered. They further argued that the deceased was a practicing advocate and it is wrong to say that he was in coma through out. They further contended that there is no reason for false implication of the present applicant who was a hired assassin. LEARNED AGA also contended that conduct of the applicant is such that he does not deserved to be released on bail. He pointed out that on 23-9-2005 the applicant was called at the Police Station for interrogation and interregnum interrogation on the pretext to attend the call of nature, he absconded and was subsequently apprehended on 25-9-2005. LEARNED AGA contended that if the applicant will be released on bail he will again abscond and will not allow the trial to proceed. He further argued that since the trial is in progress and two witnesses had already been examined in the case hence the trial may be expedited as the applicant does not deserve to be released on bail and his prayer should be refused. Learned Counsel for the applicant in his rejoinder address contended that the I. O. even though mentioned that he had taken permission of the doctor before recording of the statement of the deceased under Section 161 Cr. P. C. but had not appended the said certificate in the case diary nor he has examined the deceased in question-answer form though he was infact recording his dying declaration.;