Shiv Shanker, J. - (1.) THE present first bail application moved on behalf of the applicant seeking bail in case crime No. 385 of 2005 under Sections 147, 148, 149, 302 IPC read with Section 34 and Section 120-B IPC and Section 7 Criminal Law Amendment Act, police station Massoori District Ghaziabad.
(2.) ACCORDING to the First Information Report the brief facts of the case is that on 24-11-2005 at about 2.30 p.m. accused persons Surendra, Bante, Manoj, Indrapal and Pappu (present applicant), Kale, Pramod (Pore) Abrar, Jitendra, Kiranpal armed with fire-arms in the vicinity of jungle committed murder of four women namely, Shisha, Sharda, Smt. Chando and Vijendri who died on the spot. They made a criminal conspiracy with other co-accused Rukan, Samai Singh and Rampal for committing murder of aforesaid women. The First Information Report was lodged on 24-11-2005 at 4.30 p.m. covering 12 km distance from the place of occurrence. Heard Sri J.S. Sengar learned senior Counsel assisted by Sri I.K. Chaturvedi appearing for the applicant and learned AGA. It is contended by the learned Counsel for the applicant that the first informant, Gopal Singh is aged about 75 years. He was not an eye-witness of this alleged occurrence as he reached by running at the spot after hearing the voice of firing. It is contended that there was enmity with other persons as the two of deceased women had given shelter to the miscreants. Due to distribution of money, a clash took place there in between known and unknown miscreants with the deceased. Consequently, miscreants committed murder of the deceased women and the applicant has been falsely implicated in the present case due to enmity. It is further contended that post-mortem report of all the four deceased reveals that total 10 ante-mortem injuries were found on the body of the deceased, while 10 persons have been shown as assailants. In such circumstances, it can take only few seconds in opening fire by all the ten accused persons, therefore, the first informant or other alleged eye-witnesses could not see the alleged occurrence. The first informant and other eye-witnesses shown in the First Information Report were working in sugar-cane field, while, all the deceased were going to their houses in buggy with fodder (grass) for animals and on the way, they have been killed. The place (field) of cutting sugarcane by the eye-witnesses had not been shown in the site plan of incident. It had been admitted by PW-1 in the Court that a person may reach at the place of incident in 5 minutes from the place where the eye- witnesses were working in sugarcane field. Thus the persons who were allegedly present in the sugarcane field could not see the assailants by reaching at the spot. It is further contended by the learned Counsel for the applicant that 11 cartridge of 12 bore gun have been recovered from the place of occurrence. No any empty cartridge of 315 bore gun was found there. The present applicant has been arrested by the police and one country made pistol of 315 bore had been shown recovered from his possession which was allegedly used in committing murder. In such circumstances, his presence had become doubtful at the time of alleged occurrence. It is further contended that PW-1 had developed prosecution story in his deposition that he was also coming from his field behind the said buggy of the deceased and this statement was not given to the Investigating Officer under Section 161 Cr.P.C. This also shows that he did not see the alleged occurrence. It is further contended that Satish has also been shown as eye-witness of this occurrence while he is resident of 12 km away from the place of occurrence. It is further contended by the learned Counsel for the applicant that the statements of Pradeep and Sri Jagatpal were recorded by the investigating officer. They have stated in Samai Sakshya that miscreants have committed murder of four women in the jungle which was heard by them. It is further contended that the statement of first informant was again recorded by the Investigating Officer wherein he stated that he alongwith other eye-witnesses reached at the spot after hearing the voice and noise of firing. One Satapal, the real brother of informant also reached at the place of incident after hearing the noise and voice of firing. It is further contended by the learned Counsel for the applicant that Joginder Singh, Narendra Singh and Malkhan submitted their affidavits to the Deputy Inspector General of Police region, Meerut by stating that some unknown miscreants have committed the murder of all the deceased and the present applicant has been falsely implicated in the present case due to enmity. It is further contended that when there was enmity with the first informant or his family members, while, the first informant alongwith other eye-witnesses was coming behind the buggy of the deceased, it is very likely to commit murder of the first informant by the accused persons in the revenge of enmity. However, no attempt was made on behalf of the accused persons to cause any injury upon the first informant or other eye-witnesses. Therefore, this also shows that none was the eye-witnesses of the alleged occurrence and their (four women) murder was committed by some miscreants getting shelter at their houses of above two ladies (deceased). In such circumstances his bail application is liable to be allowed.
(3.) LEARNED AGA opposed the bail application that the incident had taken place on 24-11-2005 at 2.50 p.m. and the First Information Report was lodged by first informant, Gopal Singh at 4.30 p.m. against the applicant alongwith 12 other persons after covering distance of 12 km. Therefore, First Information Report was lodged within two hours covering the said distance. It has been specifically mentioned in the First Information Report that first informant, his brother Surendra, Satpal, Satish and Sohan Pal were cutting sugar cane in their fields and all the above four women (deceased) have proceeded from the said field with fodder for animal in a buggy. After going at a stone's through, they were besieged by the applicant alongwith 9 other co-accused persons and opened indiscriminate firing upon the women (deceased). Consequently, the above four women sustained fire-arm injuries and they died on the spot. According to the fard baramdagi, 11 cartridges of 12 bore pistol, were recovered at the place of occurrence by the Investigating Officer. This also shows that they were murdered by causing fire-arm injuries i.e. 12 bore pistol. The present applicant was the member of unlawful assembly with other 9 co-accused and in prosecution of common object four above women (deceased) have been murdered. It has been specifically stated in the statement of all the prosecution witnesses recorded under Section 161 Cr.P.C. that all the witnesses including first informant were cutting the sugarcane in their field. PW-1 who is the first informant had admitted in his cross- examination that the distance In between place of occurrence and Krishna Pal Singh's field where all the witnesses were cutting sugarcane is a passage of only three fields and therefore, it is liable to be deemed that it is very close place where the witnesses were working at field and the place of occurrence. They could easily reach at the place of occurrence after hearing the noise and voice of firing. Although, he had admitted, it can take five minutes time for reaching at the place of occurrence from the field where they were on work. It is only an estimate/guess and not exact distance of three fields. There must be great noise of crying by the women (deceased) and same must be heard by the first informant and others and they might reach easily at the place of alleged occurrence. They can see the incident in their presence. The version of the prosecution case is fully corroborated with medical evidence that is post-mortem report of all the four deceased women. Although the applicant was arrested with a country made pistol of 315 bore. No empty cartridge of 315 bore was found at the place of occurrence. It does not mean that he had not participated in committing the murder. His first evidence is of eye testimony and second is recovery of country made pistol of 315 bore. Recovery may be false as he was not arrested at the spot after committing the murder. Motive of this case is that there was enmity with the co-accused Surendra and others with the first informant. Previously, the son of first informant was murdered by the accused Surendra and others and are facing trial.;