- (1.) SHIV Shanker, J. This is the first bail application moved on behalf of applicant Durga Upadhyaya, involved in case Crime No. 96 of 2006, under Sections 147, 148, 149, 307, 302, 504 and 506, I. P. C. , Police Station Dubaulia, District Basti.
(2.) HEARD Sri V. P. Srivastava, Senior Advocate, assisted by Sri Lav Srivastava, learned Counsel for the applicant and Sri Prabhakar Singh, learned Counsel appearing on behalf of the complainant as well as the learned A. G. A. I have also perused the whole records. Learned Counsel for the applicant has submitted that the inquest report of the deceased Jagdish was prepared first and then the First Information Report was registered at latter stage as the distance between the place of incident and police station had been shown five kilometers in the inquest report whereas 3-1/2 Kms. has been shown in the First Information Report. Therefore, the F. I. R. was not in existence at the time of preparing the inquest report. It is further submitted that the deceased, who was a graduate, had gone to withdraw the money from the Bank but one Baniyan, one underwear and one pant was found on the dead-body and the shirt was not found upon it. Thereafter the prosecution had introduced the shirt by saying that it was lying on the spot and it was also blood-stained. If the shirt was blood stained then it ought to have been on the body of the deceased and if it was not on the body of the deceased, then it should not have been blood stained. It is further submitted that the firing was said to have been resorted from the front facing each other. If the post-mortem report is seen the injury No. 1 has caused entry towards right side of neck upper part 3 cms. below to the lobule. This injury has caused the exist wound from the left side of forehead, which shows that the trend of the injury is upward from down ward. Likewise, the injury No. 3 is on the right cheek 2 cms. anterior to the right ear lobule. This injury has also the upward trend and it has gone to brain cavity. These two injuries are not possible in the manner as alleged by the prosecution in the First Information Report. It is further submitted that there are three eye-witnesses in this case, one is first informant Dinesh Yadav, who is real brother of the deceased and others are Gama and Surjan Yadav. Both these witnesses are the first cousins of the deceased. These two witnesses are purely chance witnesses and their presence at the time of incident are doubtful. It is further submitted that the statement of the first informant Dinesh Yadav was recorded under Section 161, Cr. P. C. on the same of the incident, i. e. , 11-4-2006 while the statements of eye-witnesses Gama Yadav and Surjan Yadav have been recorded, under Section 161, Cr. P. C. on 29-4-2006, after the lapse of about 128 days from the date of incident according to the 8th Parcha of the case diary and there is no plausible explanation as to why they were interrogated so late. It is further submitted that the role of the present applicant has been shown of instigation as well as firing whereas the other eye-witnesses, namely, Gama Yadav and Surjan Yadav have given the role of instigation to other co-accused Ram Pratap, Sabhajit and Ambika. It is further contended that the applicant was arrested and a country made pistol was planted on him and it is said that this country made pistol was recovered at the pointing out of the applicant. The so-called country made pistol, which was recovered at the pointing out of the applicant, was never sent to the Ballistic Expert to be tallied with the bullet recovered from the body of the deceased. It is also necessary to point out here that no empty cartridges were recovered from the spot The applicant was implicated in few cases and in all those cases, he has been acquitted except in one case of under the Gangsters Act and it is still pending since last many years. It is further submitted that the murder in question had been committed at a lonely place when none of the witnesses were present and the name of the applicant has been introduced because of village politics and election rivalry. It is further submitted that the place of incident from the village of the deceased is about 1-1/2 Kms. As per the site plan, the accused persons after committing the murder of the deceased run away towards canal and thereafter through the barrage, but no vehicle can play on this barrage as it is so much disturbed because of accumulation of mud at places. There was pucca road towards Dubaulia and the applicant could have very well fled away on that road instead of going on rough barrage of canal.
(3.) ON the other hand, the learned Counsel appearing on behalf of complainant as well as learned A. G. A. has submitted that the bail application of co-accused Raju, whose role was also similar to that of the present applicant, had already been rejected on 17-8-2006 by Hon'ble Ravindra Singh, J. vide order passed in Criminal Misc. Bail Application No. 16676 of 2006. This is a case of broad day light incident of murder wherein the eye-witnesses saw the incident in their presence and their presence cannot be doubted at the place of occurrence. It is further submitted that the country made pistol, which was allegedly used by the applicant, was also discovered. ON his pointing out, the blood stained shirt of the deceased was also found near the dead-body of the deceased. Therefore, it cannot be said that it has been introduced later on. According to the post-mortem report, two fire-arm injuries were found on the dead-body of the deceased, which supported the prosecution version. In such circumstances, the bail application of the present applicant is liable to be rejected. This incident had occurred on 11-4-2006 at about 10. 45 a. m. while the F. I. R. was lodged and registered on the same day (11-4- 2006) at 11. 30 a. m. by Dinesh Yadav, first informant at the concerned police station against the present applicant alongwith others. The distance in between the place of occurrence and police station has been shown 3-1/2 Kms. in the F. I. R. Therefore, the F. I. R. has been lodged within 45 minutes of the incident. In such circumstances, it is liable to be deemed that it has been lodged very promptly against the accused persons, including the present applicant.;