Ravindra Singh - (1.) - This application has been filed by the applicants Abdul Rahman alias Pappu and Aftab Alam alias Munne with a prayer that they may be released on bail in Case Crime No. 781 of 2005, under Sections 302, 394 and 411, I.P.C., P.S. Tewaripur, district Gorakhpur.
(2.) THE prosecution story, in brief, is that the F.I.R. of this case has been lodged by Anirudh Kumar Srivastava on 3.11.2005 at 9.05 a.m., the time of the occurrence was unknown. THE F.I.R. was lodged against the unknown miscreants alleging therein that the first informant got the information from the persons of the locality where the deceased Om Prakash Srivastava and his wife deceased Smt. Vidya were residing, that the house of the deceased was closed from the inside and no sound was coming out, on that information the first informant with the help of the persons residing in that locality, had broken the door and saw that the dead bodies of the deceased Om Prakash Srivastava, his wife Smt. Vidya Devi and Faiz Mohd. were lying in pool of blood. According to the post-mortem examination report, Sri Om Prakash Srivastava had received four ante mortem injuries in which injury No. 1 was incised wound and injury Nos. 2, 3 and 4 were contusion, deceased Smt. Vidya Devi had received four ante-mortem injuries in which injury Nos. 1 and 2 were incised wound and injury Nos. 3 and 4 were contusions and the deceased Faiz Mohd. had received four ante mortem injuries in which injury No. 1 was incised wound and injury Nos. 2, 3 and 4 were contusions. THE post-mortem examination was conducted on 4.11.2005. THE F.I.R. was lodged under Section 302, I.P.C. but during investigation it was found that the robbery was also committed by the miscreants and from the possession of the applicant Abdul Rahman alias Pappu one stolen mobile phone set Nokia 1100 was recovered and at his pointing out one stolen T.V. portable was recovered and at the pointing out of the co-accused Aftab Alam alias Munne one stolen V.C.D. was recovered and at the pointing out of the applicant Abdul Rahman alias Pappu one knife used in the commission of the alleged offence was recovered. Heard Sri Manish Tiwary and A. K. Awasthi, learned counsel for the applicants, learned A.G.A. for the State of U. P. and Sri Brijesh Sahai, learned counsel for the complainant. It is contended by the learned counsel for the applicants that the applicants are not named in the F.I.R., they have not been put up for identification. There is no eye-witness account, the only evidence against the applicants collected by the Investigating Officer is that from the possession of the applicant No. 1 Abdul Rahman alias Pappu one mobile phone of Nokia 1100 bearing I.M.E.I. No. 352524003835124 was recovered on 15.12.2005 and at his pointing out one portable T.V. has been recovered and at his pointing out one knife used in the commission of the alleged offence was recovered and from the possession of the applicant No. 2 Aftab Alam alias Munne one V.C.D. player has been recovered. The recovery was planted by the Investigating Officer and it was not in any way connected with the alleged offence because according to the F.I.R. no robbery was committed and according to the statement of the first informant Anirudh Kumar Srivastava also no robbery was committed. The statement of Alok Srivastava, the son of the deceased Om Prakash Srivastava, who came from America was recorded under Section 161, Cr. P.C. on 6.11.2005. He also did not make any allegation in respect of the robbery but his second statement was recorded under Section 161, Cr. P.C. on 12.12.2005 in which he stated that the mobile phone Nokia 1100 No. 9839097504 having I.M.E.I. No. 352524003835124, one pair of leather Chappal, one portable T.V. L.G., one R.E.D. alongwith remote were stolen by the miscreants at the time of the alleged incident. It has been shown by the Investigating Officer that this statement was recorded on 12.12.2005. In fact it was not recorded on 12.12.2005, it was recorded after 15.12.2005 because the applicants were arrested by the police on 15.12.2005 and the recovery of the abovementioned articles have been shown from their possession and the recovery was not supported by any independent witness. This recovery does not connect the applicants with the commission of the alleged offence. The applicants are peace loving persons, they are not having criminal antecedents, therefore the applicants may be released on bail.
(3.) IN reply of the above contentions, it is submitted by the learned A.G.A. and learned counsel for the complainant that the witness Alok Kumar Srivastava, the son of the deceased Om Prakash Srivastava, was serving in America, after receiving the information in respect of the murder of his parents, he came there but he was not having the information about the articles which were stolen, therefore he could not state anything in respect of the robbery in the first statement. Thereafter he enquired and came to know that the robbery has also been committed which has been stated by him in his second statement recorded on 12.12.2005 and the same articles have been recovered from the possession of the applicants on 15.12.2005 and the applicants have not claimed their ownership over the recovered articles and it has come in the evidence that applicant Abdul Rahman alias Pappu has obtained a connection of Hutch Phone No. 9838656509 on 5.11.2005, i.e., after commission of the alleged offence and he was using the Nokia set which was stolen from the house of the deceased and the INvestigating Officer has also collected the call details provided by the Hutch Company. According to the details, it is established that the recovered Nokia mobile phone was belonging to the deceased Om Prakash Srivastava. It is very heinous offence in which three persons have been done to death, therefore the applicants may not be released on bail. Considering the facts and circumstances of the case, submissions made by the learned counsel for the applicants, learned A.G.A. and the learned counsel for the complainant, considering the gravity of the offence and without expressing any opinion on the merits of the case, the applicants are not entitled for bail, the prayer for bail is refused. Accordingly, this application is rejected.;