- (1.) RAVINDRA Singh, J. This appli cation has been filed by the applicant Shamshad with a prayer that he may be released on bail in Case Crime No. 25 of 2007 under section 302 IPC, P. S. Aliganj, District Etah.
(2.) THE facts in brief of this case are that the FIR of this case has been lodged by Mustaq at P. S. Aliganj on 30. 1. 2007 at 10. 00 p. m. in respect of the incident which had occurred on 30. 1. 2007 at about 9. 30 p. m. THE applicant and three other co-accused persons are named in FIR. THE distance of the police station was about one km. From the alleged place of occurrence. It is alleged that at the time of the alleged incident the deceased Mushir along with other persons was present at the door of his house then the applicant and three other co-accused persons came there and asked to commit the murder of the deceased. THE deceased was caught hold by co-accused Shakil and Bhura, at the exhortation of co- accused Sajjad the applicant discharged the shot by a country made pistol which hit on the right eye of the deceased consequently he fell down. THE alleged occurrence was wit nessed by the first informant and others in the road light and the light of Generator thereafter the applicant and other co-accused persons fled away from the place of occurrence discharging the shots in the air. THE deceased was taken by the first informant and others in a TATA 407 vehi cle for providing the medical aid but be succumbed to his injuries at a chauraha thereafter the dead body was taken to the police station and lodged the FIR. Accord ing to the post-mortem examination the deceased has sustained five injuries in which injury Nos. 1, 3 and 5 were fire arm wounds of entry, injury No. 2 and 4 were fire arm wounds of exit, injury No. 1 was on right eye, injury No. 3 was gun shot wound of entry on front of right shoulder, injury No. 5 was fire arm wound of entry on front of left shoulder. THE applicant applied for bail before learned Session Judge, Etah who rejected the same on 18. 3. 2008, being aggrieved from the order dated 18. 3. 2008 the applicant has moved the present bail application. Heard Sri J. S. Sengar, Sri Jai Shan-ker Audichya and Sri Hari Prakash Mishra, learned Counsel for the applicant, learned A. G. A. for the State of U. P. and Sri Na-siruzzaman, learned Counsel for the com plainant. It is contended by learned Counsel for the applicant that the alleged occur rence has taken place in the dark hours of the night. The presence of the first infor mant and other witnesses at the alleged place of occurrence was highly doubtful. At the time of commission of the alleged of fence none of the witness was present there because it has been specifically alleged in the FIR that the applicant has discharged the shot by a country made pistol which hit near the left eye consequently the deceased fell down but according to the post-mortem examination report of the deceased the de ceased has sustained three fire arm wounds of entry. All the injuries were having dif ferent sheets. The injury No. 3 caused by three shots not by one it also shows that the alleged incident was not witnesses by the applicant. After considering the post mortem examination the material im provement has been made in the statement of the first informant Mustaq recorded un der section 161 Cr. P. C. by the I. O. that the first shot discharged by the applicant hit the deceased near right eye thereafter the co-accused Shakil and Bhura also caused gun shot injuries by their arms namely re volver and country made pistol respec tively. According to the prosecution ver sion all the injuries were caused from a close range but none of the injury was having blackening, tattooing or charring, it shows that all the injuries were caused on the person of the deceased from a long distance. The FIR of this case is anti timed. The prosecution story is not corroborated by the site plan because according to the site plan no blood was found at the alleged place of the occurrence. There was no mo tive or intention to the applicant to commit the alleged offence. The applicant is not having criminal antecedent, he has been falsely implicated on account of village party bandi whereas the deceased was a history sheeter, he was convicted for life imprisonment under section 302 IPC. He was killed by some unknown persons, the co-accused Jakir @ Bhura, Shakil and Sajjad have been released on bail by learned Ses sions Judge, Etah in S. T. No. 200 of 1990 on 3. 6. 1999, therefore, the applicant may also be released on bail.
(3.) IN reply of the above contention, it is submitted by learned A. G. A. and learned Counsel for the complainant that the in the present case the presence of the first infor mant and other witnesses is highly doubt ful because as soon as the deceased sus tained injury Iv was kept on a TATA 407 vehicle and was taken to provide medical aid but unfortunately he succumbed to his injuries in the way then he was taken to the police station in that vehicle where the FIR was lodged. The FIR has been promptly lodged within half an hour whereas the distance of the police station was about one km. From the alleged place of the occur rence. IN FIR it has been specifically alleged that the shot discharged by the applicant hit near the left eye but in FIR it cannot be mentioned that two other co-accused per sons have also caused gun shot injuries on the person of the deceased only because it was lodged in hurry and first informant was also in a perturbed position. The FIR is not supposed to be an encyclopaedia. After lodging the FIR at 10. 00 pm. the inquest report was copied in the case diary thereaf ter the statement of constable Yad Ram has been recorded on 30. 1. 2007 and in the night of 30/31. 1. 2007 thereafter the statement of first informant Mustaq was recorded by the I. O. at 0. 45 a. m. thereafter the statement of other persons were recorded. The time of recording the statement of the first infor mant under section 161 Cr. P. C. has been mentioned in the case diary in parcha No. 1, his statement was recorded at 0. 45 a. m. on 31. 1. 2007 whereas the post-mortem was done on 31. 1. 2007 at 10. 30 a. m. , therefore, it cannot be said that on the basis of injuries found in post-mortem examination a ma terial improvement has been made in the statement of first informant Mustaq under section 161 Cr. P. C. even in the site plan which was prepared on 31. 1. 2007 it has been specifically alleged that the first shot was discharged by the applicant thereafter two shots were discharged by two co-accused persons. There was a sufficient source of light. IN any case it cannot be said that the deceased was murdered by some unknown persons due to enmity. The case of the applicant is distinguishable with the case of the other co-accused persons who have been released on bail by Sessions Court because the role of causing the inju ries is not attributed in the FIR whereas the specific role of causing the injury on the person of the deceased is attributed to the applicant in the FIR. IN case the applicant is released on bail, he shall tamper with the evidence, therefore, he may not be released on bail. Considering the facts, circum stances of this case, submissions made by learned Counsel for the applicant, learned A. G. A. teamed Counsel for the complain ant and from the perusal of the record it appears that the role of causing gun shot injury is assigned to the applicant in the FIR and before post- mortem of the de ceased the statement of the first informant was recorded under section 161 Cr. P. C. in which he has explained that two co-accused persons have also caused gun shot injury on the person of the deceased, the other gun shot injuries have been explained by the first informant in his statement recorded under section 161 Cr. P. C. which was recorded in the night of 31/31. 1. 2007 at 0. 45 a. m. whereas the post-mortem ex amination was done at 10. 30 a. m. on 31. 1. 2007. The case of the applicant is dis tinguishable with the case of the other co-accused persons who have been released on bail because the role of causing the in juries was not assigned to the co-accused persons and without expressing any opin ion on the merits of the case the applicant is not enticed to be released on bail. The prayer for bail is refused. Accordingly, this application is re jected. Application Rejected. .;