Shiv Shanker and S.C.Nigam, JJ. - (1.) HEARD learned counsel for the appellant, learned A.G.A. and perused the record.
(2.) LEARNED counsel for the appellant/accused submitted that this incident had allegedly taken place on 3.5.2000 at about 9 p.m. However, the source of light has not been mentioned in the F.I.R. In such circumstances the assailant could not be identified in the darkness. The prosecution examined P.W. 1 Premsheela Singh, wife of the deceased, P.W. 2, Lilawati, mother of the deceased. The name of P.W. 2 has not been mentioned in the F.I.R. as witness. The incident had not taken place at the house of P.W. 2 but it was happened at the house of one co-accused Eslam tailor. Therefore, both the witnesses are the chance witnesses and they could not see the assailants at the time of the incident. The F.I.R. is ante timed as there is discrepancy regarding the distance of place of incident and P.W. 1 had admitted that the Sub-Inspector reached at the spot, then written report was got prepared. The Sub-Inspector-P.W. 3, has admitted the said facts in his evidence. Therefore, the F.I.R. could not be lodged on 4.5.2000 at 1 a.m. in the night. It is further contended that there was no motive to commit the murder of the deceased as there was no enmity with him. There is medical conflict in the case. The role of three co-accused persons have been shown of catching hold the deceased at the time of firing and the appellant/accused Munna alias Nikhlesh Sharma shot fire upon him. Consequently, two gun shot wounds of entry, having two gun shot wounds of exit, were found on the dead body of the deceased. Therefore, the role of catching hold of the deceased by co-accused is doubtful. Thus, his presence was also doubtful at the time of incident. The post mortem examination report does not reveal that the deceased had taken some alcohol before his death. On that basis, a contention of medical conflict has been raised. The deceased was having criminal history. Therefore, there were several enemies of the deceased and some person committed murder of the deceased in the night and the accused/appellant has been falsely implicated in this case. Learned A.G.A. has opposed the prayer for bail. The F.I.R. has been lodged on 4.5.2000 at 1 a.m. (in the mid night) regarding occurrence dated 3.5.2000 at 9 p.m. after covering the distance of seven kilometers which was lodged by P.W. 1 Prem Sheela Singh, wife of the deceased. There is difference of distance of place of incident as mentioned in the F.I.R. and in the inquest report. Inquest report can only be considered for the purpose of wounds and weapon. Therefore, the F.I.R. is not ante timed. So far as the source of light is concerned, accused/ appellant alongwith two associates who are the residents of the same village, reached firstly at the house of the deceased. Thereafter, co-accused Eslam tailor brought him to his house alongwith appellant / accused. Therefore, P.W. 1 and P.W. 2 could easily identify the accused even in the darkness. It is a case of direct evidence. In such type of case, motive has no significance. The testimony of P.W. 1 and P.W. 2 reveals that the present appellant/accused only shot fires upon the deceased. Consequently, he sustained two gun shot wounds of entry and having two gun shot wounds of exit, according to the post mortem report of the deceased. The medical conflict cannot be deemed merely on the basis that smell of alcohol was not found from the mouth of the deceased at the time of the post mortem report. Therefore, there is no medical conflict in the case. No sufficient explanation has been given on behalf of appellant/ accused and as to why he has been implicated falsely in this case.
(3.) AFTER considering the fact and circumstances of the case and submission made by the learned counsel for the appellant/accused, there is no force in the submission made by the learned counsel for the appellant/accused. Therefore, the prayer for bail of appellant in the appeal is liable to be rejected. Consequently, the prayer for bail of the present appellant in the appeal is hereby rejected.;