Ravindra Singh - (1.) -This application has been filed by the applicant Vijai Maurya with a prayer that he may be released on bail in Case Crime No. 76 of 2006 under Section 302, I.P.C. P.S. Bardah district Azamgarh.
(2.) THE prosecution story in brief is that a F.I.R. of this case has been lodged by Shiv Kumar Sahu on 30.3.2006 at about 11.30 a.m. in respect of the incident which had occurred on 30.3.2006 at about 11.00 a.m., the distance of the police station was about 4 kms. from the alleged place of occurrence. According to the F.I.R. the applicant and other co-accused persons are not named as accused but during investigation the name of the applicant and co-accused Devanand Maurya came to light as accused. It is alleged that the first informant got a telephonic message that his brother Jitendra Kumar Sahu has been shot dead, thereafter, he alongwith his family members and friends came at the place of occurrence and saw the dead body of the deceased. It is alleged that the deceased has been murdered on account of the election rivalry but during investigation the statement of the first informant was recorded in which he stated that two days prior the occurrence, the applicant and co-accused Devanand Maurya had done marpeet with the father of the first informant, which can be verified by Arvind Kumar Maurya. THEreafter, the statement of Arvind Kumar Maurya was recorded by the Investigating Officer on 31.3.2006 who alleged that the motorcyclist overtook the motorcycle of the deceased and stopped the same by the applicant and other co-accused Devanand Maurya and after exhortation they discharged shots by the country made pistol. Due to fear he ran away from the place of occurrence and hide himself in a nearby village. THEreafter he went to his village in the night. He was known to the applicant and the other co-accused Devanand, who came on a black colour motor cycle having no number plate, at the time of the commission of the alleged offence. He stated that he was having danger to his life. According to the post mortem examination report, the deceased had received two firearm wounds of entry. Both the injuries were having blackening. Heard Sri V. P. Srivastava, senior advocate, assisted by Sri S. K. Dubey, learned counsel for the applicant, learned A.G.A. and Sri Vinay Saran, learned counsel for the complainant. It is contended by the learned counsel for the applicant that the applicant is not named in the F.I.R. The name of the applicant has been disclosed on the next day of the alleged occurrence by Arvind Kumar Maurya, who claimed himself to be an eye-witness by alleging that he had also gone in the company of the deceased on the motorcycle for realizing the money from Martinganj bazar whereas this fact has not been disclosed in the F.I.R. In the F.I.R. it was simply mentioned that the deceased had gone alongwith an associate for realizing the money from Martinganj and the presence of the witness Arvind Kumar Maurya at the alleged place of occurrence was highly doubtful even his conduct was highly unnatural, which shows that he was not present at the time of the commission of the alleged offence. There is no other eye-witness to support the prosecution story. Arvind Kumar Maurya has filed an affidavit dated 4.4.2006 claiming himself to be an eye-witness, a non-judicial stamp paper was purchased on 28.3.2006, i.e., prior the alleged incident which shows that his statement was not recorded on 31.3.2006 because if his statement was recorded there was no need to file the affidavit. The witness Arvind Kumar Maurya is highly interested but partisan witness and no reliance can be placed on such witness. The F.I.R. of this case is ante timed. It was not in existence at the time of the preparation of the inquest report because there is overwriting in the time of the F.I.R. mentioned in the inquest report and the time of initiating the proceedings of the inquest report has not been mentioned. In the inquest report 32 bore revolver alongwith 5 cartridges and one golden ring has been found from the possession of the deceased, which belies the whole prosecution story. In the inquest report the time of lodging the F.I.R. has been mentioned at 11.15 a.m. on 30.3.2006, whereas this time has been mentioned in the chik report as 11.30 a.m. The prosecution story is not corroborated by the medical evidence because both the injuries were caused from a close range and dimension of the injuries show that both the injuries were caused by the same weapon, only two fire arm wounds of entry were found on the person of the deceased, which belies the prosecution story and the co-accused Devanand Maurya whose case was on the same footing with the case of the applicant has been released on bail by another Bench of this Court on 30.10.2006 in Criminal Misc. Bail Application No. 15693 of 2006, therefore, the applicant is also entitled to get the benefit of parity. The applicant is innocent, he has not committed the alleged offence. The deceased was murdered at a lonely place by some unknown persons but due to the village partybandi the applicant has been falsely implicated by Arvind Kumar Maurya. It is also surprising that the first informant did not disclose the name of the applicant under Section 161, Cr. P.C., the naming of the applicant is afterthought.
(3.) IN reply of the above contentions it is submitted by the learned A.G.A. and the learned counsel for the complainant that the applicant was having strong motive to commit the alleged offence. The applicant was not named in the F.I.R. because the F.I.R. has been lodged by the first informant Shiv Kumar Sahu, who was not an eye-witness and immediately after having lodged the F.I.R. the statement of the first informant was recorded under Section 161, Cr. P.C. in which also he did not disclose the name of the applicant because by that time the witness Arvind Kumar Maurya could not have any contact with him. The name of the applicant has been disclosed by Arvind Kumar Maurya on the next day of the alleged incident and he has clearly stated that Jitendra Kumar Sahu was murdered by the applicant and co-accused Devendra Nath Maurya but due to fear he ran away from the place of occurrence and was hiding himself in a nearby village but in the night he came back to his house under the cover of darkness. Prior to his arrival the first informant was not having any information about the manner of incident but the first informant himself stated under Section 161, Cr. P.C. that the details of the incident could be revealed by the witness Arvind Kumar Maurya. The witness Arvind Kumar Maurya has properly explained his conduct, which was natural and there is no delay in recording his statement. The contention in respect of the ante dated F.I.R. raised by the learned counsel for the applicant is not relevant in the present case because the applicant and the other co-accused are not named in the F.I.R. even nobody has been named in the F.I.R. as accused. It is further contended that the prosecution story is fully corroborated by the medical evidence, because the deceased has received two gun shot wounds of entry, and the allegation against the applicant and other co-accused Devanand Maurya is that both have fired by their country made pistol consequently the deceased received injuries. It is further contended that no inference can be drawn by the affidavit of the witness Arvind Kumar Maurya filed on 4.4.2006 that his statement recorded under Section 161, Cr. P.C. was not in existence on 31.3.2006 as such the affidavit has been filed in respect of his statement recorded under Section 161, Cr. P.C. The bail of the co-accused Devanand Maurya has been granted by Hon'ble Vinod Prasad, J., on 30.10.2006 only on the ground that 'Arvind Maurya is not named as witness in the F.I.R. and his affidavit was filed belatedly on 4.4.2006 after five days, in which he did not make any mention regarding the recording of his statement under Section 161, Cr. P.C. on 31.3.2006 and conclusion was drawn that after the statement of Arvind Kumar Maurya recorded on 31.3.2006 there was no necessity for him to file the affidavit on 4.4.2006 on a stamp paper which was purchased by him on 28.3.2006 two days prior to the incident and in that affidavit he had not shown any apprehension regarding any threat etc. being administered to him and that name of the co-accused Devanand surfaced after four days of the alleged incident' inference drawn by another Bench of this Court granting the bail to the co-accused Devanand Maurya is not proper because Cr. P.C. empowers that statement of the witness may be recorded under Section 164, Cr. P.C. even after recording the statement under Section 161, Cr. P.C. on the same anology if any affidavit has been filed by the witness during investigation supporting the prosecution version it does not mean that the statement of that witness recorded under Section 161, Cr. P.C. was not in recorded till the date of filing such affidavit his statement and the parity is not the sole ground for granting bail because in the present case, specific role of causing injury to the deceased has been attributed to the applicant and the co-accused Devanand Maurya and for cancellation of bail to the co-accused Devendra Maurya, the first informant has already moved an application under Section 439 (2), Cr. P.C. before this Court, therefore, the applicant is not entitled for bail. After perusal of the record and considering the submissions made by the learned counsel for the applicant, the learned A.G.A. and learned counsel for the complainant, it appears that in the present case the F.I.R. has been promptly lodged name of the applicant has not been disclosed in the F.I.R. because the first informant was not an eye-witness and he could not have any contact with the sole eye-witness till lodging the F.I.R. recording his statement under Section 161, Cr. P.C. The statement of Arvind Kumar Maurya, the sole eye-witness was recorded on 31.3.2006. He stated that he was in the company of the deceased, both have gone on the same motorcycle from their house and in the way the deceased was murdered by the applicant and co-accused Devanand Maurya by causing injury by their country made pistols and to save his life, ran away from the place of occurrence, due to fear he hide himself in a nearby village and could dare to come out in the night under the cover of darkness and reached to his house. It has been clearly mentioned in the F.I.R. that the deceased had gone alongwith his associate from his house on 30.3.2006 at about 9.00 a.m. to realize some money from the Martinganj bazar. According to the F.I.R. also one person has gone in the company of the deceased, the first informant clearly stated under Section 161, Cr. P.C. which was recorded after lodging the F.I.R. on 30.3.2006 that the witness Arvind Kumar Maurya had gone in the company of the deceased. The statement of Arvind Kumar Maurya was recorded on 31.3.2006 who has also filed an affidavit on 4.4.2006 on a non-judicial stamp paper, which was purchased by him on 28.3.2006. The affidavit has been filed in support of the prosecution story. By filing this affidavit on 4.4.2006 no inference can be drawn that statement of the witness Arvind Kumar Maurya was not recorded on 31.3.2006 or it was ante dated and it makes no difference if such an affidavit has been filed on a non-judicial stamp papers purchased two days prior to the alleged incident. The Cr. P.C. provides the recording of the statement of the witnesses under Section 164, Cr. P.C. even after recording the statement under Section 161, Cr. P.C. On the same analogy if any witness files the affidavit in support of the prosecution story, no inference can be drawn that the statement of that witness was not recorded under Section 161, Cr. P.C. till the date such affidavit is filed and it was ante dated.;