- (1.) RAVINDRA Singh, J. This application has been filed by the applicant Yogesh with a prayer that the applicant may be released on bail in case crime No. 1 of 2005 under Sections 147, 148, 149 and 302 IPC. P. S. Saroorpur, District Meerut.
(2.) THIS application was heard by Hon'ble C. P. Misra, J. and his lordship was pleased to release the applicant on bail vide order dated 7-3-2005 but order dated 7-3-2005 was challenged by the complainant Sri Rajendra Singh in the Supreme Court of India by way of filing Criminal Appeal No. 343 of 2006 (arising out of Special Leave Petition (Crl.) No. 2660 of 2005 in which the leave was granted and impugned order dated 7-3-2005 was set aside and case was remitted back to this High Court for a fresh decision thereon after recording the reasons in accordance with law and the Hon'ble the Chief Justice of this Court was requested to place the matter before a learned Single Judge other than to one who passed the impugned order and the appeal was disposed of in the above terms on 27-3-2006. The order dated 27-3-2006 reads as under : "leave granted. The High Court has granted bail to the accused (Respondent No. 2 herein) in a case involving him for commission of offences punishable under Section 302 read with Sections 147, 148 and 149 I. P. C. , without assigning any reasons whatsoever therefor. We have gone through the affidavit filed by the respondent-State of U. P. which indicates that as many as 16 criminal cases are pending trial against the accused-respondent No. 2 in different Courts. Since the High Court has not given any reason while granting bail to Respondent No. 2 and keeping in view the affidavit filed by the State of U. P. the impugned order is set aside the case is remitted back to the High Court for a fresh decision thereon, after recording reasons, in accordance with law. The Hon'ble Chief Justice of the High Court is requested to place the matter before a learned Single Judge other than the one who passed the impugned order. The appeal is disposed of in the above terms. " In pursuance of the order dated 27-3-2006 the Hon'ble Senior Judge of this Court has nominated this case to this Bench. The prosecution story in brief is that the F. I. R. of this has been lodged by Rajendra Singh on 2-1-2005 at 9. 05 a. m. in respect of the incident which had occurred at about 7. 00 a. m. in the vicinity of the village Bhadaura, P. S. Saroorpur, District Meerut. The F. I. R. was lodged against the applicant, co-accused Saudan, co-accused Ramveer, co-accused Shailendra alias Suraj and two or three unknown miscreants alleging therein that the first informant was having old enmity with one Naththan in respect of a land, due to this enmity the first informant was attacked prior the alleged incident, on the day of alleged occurrence at about 7. 00 a. m. , the applicant and other co-accused persons armed with weapons entered into the house of the Nepal Singh after crossing the wall and they enquired about the first informant from the deceased Mukesh and Smt. Sohanveeri but they started shouting, on their shouting the nearby people came from their houses, then the applicant and other co-accused persons discharged the shots by their fire-arms, consequently Smt. Sohanveeri and Mukesh lost their lives, thereafter, the applicant and other co-accused persons fled away towards jungle after crossing the wall of the house of the first informant. The alleged incident was witnessed by the first informant and other witnesses and the miscreants were seen by some other villagers also when they were fleeing way away from the place of occurrence thereafter leaving the dead-bodies at the place of the occurrence, the first informant went to the police station and lodged the F. I. R. The first informant has lodged the F. I. R. on 2- 1-2004 at 9. 05 a. m. whereas telephonic message about the alleged incident was already given by some unknown person to the police station concerned on 2-1-2004 at 7. 45 a. m. According to the post- mortem examination reports the deceased Mukesh Kumar had sustained seven ante-mortem injuries, in which injury Nos. 1 and 5 were gun shot wounds of entry, injury No. 2 was gun shot wounds of exit, injury No. 3 was lacerated wound and, injury Nos. 4,6,7 were abrasions and the deceased Smt. Sohanveeri has sustained one gun shot wound of entry.
(3.) HEARD Sri Virendra Bhatia, Senior Advocate assisted by Sri R. A. Misra, Sri Anoop Trivedi, Sri Kamal Krishna and Sri Mahipal Singh, learned Counsel for the applicant, learned A. G. A. and Sri Vinod Sinha, learned Counsel for the complainant : (i) It is contended by learned Counsel for the applicant that the prosecution story is false, concocted and highly improbable. (ii) The prosecuting agency itself is not relying upon the prosecution version because in the F. I. R. it has been specifically alleged that the alleged offence was committed by the applicant, co-accused Saudan, co-accused Ramveer, co-accused Shailendra alias Suraj and two or three unknown miscreants, but during investigation the I. O. came to the conclusion that except the applicant, other co-accused persons were falsely implicated and the charge-sheet was submitted only against the applicant whereas the same role as of the applicant was assigned to other co-accused persons also. (iii) The prosecution story is not corroborated by the medical evidence because the role of firing is assigning to six or seven persons including the applicant but both the deceased have sustained only three gun shot wounds of entry and it has not been specified as to whose shot hit the deceased even no specific weapons has been shown in the hands of the applicant and other co-accused persons in the F. I. R. (iv) The presence of the first informant and other witnesses at the alleged place of occurrence was highly doubtful because none of them had sustained any injury in the said incident. (v) The F. I. R. of this case is ante-timed. It was not in existence at the time of preparation of inquest report. The inquest report of the deceased Mukesh was prepared on 2-1-2004 since 8. 30 a. m. to 9. 35 a. m. in the inquest report the time of lodging F. I. R. by the first informant is not mentioned whereas it is mentioned that the telephonic message was given to the police station concerned at 7. 45 a. m. on 2-1- 2004. The proceeding of the inquest of the deceased Mukesh were completed at 9. 35 a. m. on 2- 1-2004, and the inquest report of the deceased Sohanveeri was prepared on 2-1-2004 before 9. 40 to 11. 00 a. m. , in such circumstances, it was not possible to lodge the F. I. R. at 9. 05 a. m. on 2-1-2004. (vi) During the investigation the manner of the occurrence has been changed by the first informant and other witnesses. The statement of the first informant was recorded who gave a new version alleging therein that the miscreants were chased by the two constables, the miscreants had also discharged the shots towards the constables but due to heavy fog the miscreants successful escaped from the alleged place of occurrence. Constables Yashveer and constable Om Prakash were interrogated under Section 161 Cr. P. C. who supported the statement of the first informant recorded under Section 161 Cr. P. C. , according to their statements the Sub-Inspector, Constable Devendra, Constable Harishchand and Constable Ramveer also came at the place of occurrence who made the search of the miscreants. Thereafter some other statements of the witnesses were recorded by the I. O. According to their statements it appears that they had not seen the alleged incident. (vii) The applicant is innocent, he has not committed the alleged offence but he has been falsely implicated in the present case due to old enmity, he has been falsely implicated in some other criminal cases, out of which he has been acquitted in some cases. The applicant is law abiding person and he is ready to furnish adequate surety to the satisfaction of the Court, in case he is enlarge on bail. In reply of the above contention it is submitted by learned A. G. A. and learned Counsel for the complainant that alleged occurrence had taken place in broad day light. The applicant and other co- accused persons committed the murder of two persons after entering into their house. The alleged incident was witnessed by the first informant and others, its F. I. R. has been promptly lodged but prior lodging the F. I. R. telephonic message was given by some unknown person to the police station concerned in respect of the said incident, on that information the police has proceeded to the place of the occurrence and prepared the inquest report. In inquest report itself the time of receiving the telephonic message has been mentioned and there is no material to show that the F. I. R. is ante-timed. The applicant is the main accused and the prosecution story is fully corroborated by the medical evidence. The deceased persons had sustained three gun shots wound of entry. The applicant is having criminal antecedents. Sixteen criminal cases were registered against him in which many of the cases are of heinous in nature and are still pending. The following cases were registered against the applicant. (1) Crime Case No. 119/1998 under Sections 147, 148, 307, 302 I. P. C. P. S. Saroorpur, District, Meerut title Yogesh and Ors. , before the Court of Fast Track Court No. III. (Acquitted ). (2) Crime Case No. 121/98 25 Arms Act, P. S. Saroorpur, Meerut title Yogesh and Ors. Before the Court of Fast Track Court No. 5 (Acquitted ). (3) Crime Case No. 240/98 under Sections 147, 148,149, 302 I. P. C.- P. S. Saroorpur, Meerut title Yogesh and Ors. before the Court of A. D. J. ,xi (Acquitted ). (4) Crime Case No. 73/99 307 I. P. C. P. S. Saroorpur, Meerut Title Yogesh and Ors. Sessions Trial No. 688 of 1999. (Pending ). (5) Crime Case No. 74/99 25 Arms Act P. S. Saroorpur, Meerut title Yogesh and Ors. (Pending ). (6) Crime Case No. 275/01 3/4 Goonda Act P. S. Saroorpur, Meerut title Yogesh and Ors. before the Addl. District Magistrate, Meerut. (Acquitted ). (7) Crime Case No. 599/01 2/3 Gangster Act P. S. Kankarkheda, title Yogesh and Ors. before special Judge, Meerut. (Acquitted ). (8) Crime Case No. 288/01 147, 148, 149, 302, 120b I. P. C, P. S. Gani, title Yogesh and Ors. (Acquitted ). (9) Crime Case No. 501/01 147, 149, 148, 302, 120-B I. P. C, P. S. Saroorpur, Meerut title Yogesh and Ors. before Fast Track Court (Pending ). (10) Crime Case No. 303/02 147, 149, 148, 302 I. P. C. P. S. Jani title Yogesh and Ors. before Special Judge ST/sc (Acquitted ). (11) Crime Case No. 429/02 307 I. P. C. P. S. Jani, title Yogesh and Ors. , before Special Judge ST/sc (Pending ). (12) Crime Case No. 227/02 302/201 I. P. C. P. S. Azamgarh, Bulandshahr, title Yogesh and Ors. before Fast Track Court (Pending ). (13) Crime Case No. 123/03 392 I. P. C. P. S. Jani, Meerut Yogesh and Ors. (Pending) (14) Crime Case No. 125/03 307/302/386/504/506 I. P. C. P. S. Jani Meerut title Yogesh and Ors. , before Special Judge SC/st (Pending ). (15) Crime Case No. 01/04 147, 148, 149, 302 I. P. C. P. S. Saroorpur, Meerut title Yogesh and Ors. , before the A. D. J. , XI (Pending ). (16) Crime Case No. 116/04 2/3 Gangster Act, P. S. Saroorpur, Meerut title Yogesh and Ors. , before Special Judge (Pending ).;