RAVINDRA SINGH,J. - (1.) HEARD Sri G.S. Chaturvedi, learned Senior Advocate, assisted by Sri Ajatshatru Pandey, learned counsel for the applicant learned A.G.A. for the State of U.P. and Sri Manoj Kumar Chandel, learned counsel for the complainant.
(2.) THIS application has been filed by Kesari Singh with a prayer that he may be released on bail in case crime no. 25 of 2009 under sections 147, 148, 149, 302, 34 I.P.C., Police Station Balua, District Chandauli. The facts, in brief, of this case are that the FIR has been lodged by Mohani Singh on 7.2.2009 at about 7.30 a.m in respect of the incident which had occurred on 7.2.2009 at about 4.00 a.m., the distance of the police station was about 8 kms. from the alleged place of occurrence. The FIR has been lodged against seven persons including the applicant. It is alleged that father of the first informant, namely, Surendra Singh (deceased) and her brother Jai Kishan Singh ( deceased) had gone to take darshan of Markandey Mahadev at about 4.00 a.m. On 7.2.3009 at about 7.00 a.m., the first informant got an information that her father and brother have been shot dead and their dead bodies were lying in Banra vali bari, their murder was committed by the applicant and six other accused persons on account of old enmity. According to post mortem examination, the deceased Surendra Singh had sustained 3 gun shot wound of entries, two exit wounds and deceased Jaiky @ Jai Kishan Singh had sustained two gun shot wounds of entry and two gun shot wounds of exit, the applicant applied for bail before the learned Sessions Judge, Chandauli, who rejected the same on 12.5.2009.
(3.) IT is contended by learned counsel for the applicant that the alleged incident had not taken place as alleged by the prosecution because both the deceased have sustained five gun shot wounds of entries, but the dimension of each entry of wound was the same. It shows that all the shots were discharged by a weapon used by one person. It is further contended by learned counsel for the applicant that the first informant is not eye witness. The applicant and other co-accused persons have been named only on the basis of doubt and suspicion because according to the FIR itself, no such information that the deceased were killed by applicant and other co-accused persons had been given to the first informant. The deceased persons were killed on the lonely place by some unknown persons in the dark hours of night but to show the presence of the witnesses, a new story has been narrated by the first informant in the statement recorded under section 161 Cr.P.C. that both the deceased had gone to bath and the darshan of Markandey Mahadev but prior to their departure, the Mausa of the first informant, namely, Ajay Kumar Singh, Smt. Sohni Singh wife of the deceased Sunder Singh, Smt. Malti Devi had gone on foot to take darshan of Markandey Mahadeo. In the morning at about 7.00 a.m. Ajay Kumar Singh, the Mausa of the first informant had got the information that the deceased persons have been killed by the applicant and other co-accused persons. The witness Ajay Kumar Singh, the Mausa of the first informant, his reference has not been given in the FIR but to set up a new story, he has been made the witness. The statement of Ajay Kumar Singh was recorded by the I.O.,who stated that he was accompanied with the deceased persons all of a sudden, a motor cycle on which the applicant, co-accused Santosh and co-accused Dharm Raj were riding, they stopped the motor cycle near the deceased persons, in the meantime, co-accused Ram Lakhan, Gunjan, Ajit, Sunita who were hiding there, came and asked to commit the murder of the deceased persons. At the exhortation of co-accused Ram Lakhan, Suneel, Santosh, Ajit, Gunjan, the applicant and co-accused Dharam Raj discharged the shots indiscriminately, the deceased Sunder Singh tried to run away but he was chased and shots were discharged by them hit the deceased, consequently, both the deceased died on the spot. At that time two women, who were in the company of Ajay Kumar Singh became unconscious. According to him the deceased persons were shot dead at about 6.30 a.m. The presence of the witnesses at the alleged place of occurrence is highly doubtful. The distance of the house from the alleged place of occurrence is about 8 kms. Even according to the prosecution version,only the deceased persons had gone on a motor cycle, other were on the foot, their presence at the place of occurrence was highly doubtful. The presence of Ajay Kumar Singh, who happens to be Mausa of the first informant at the alleged place of occurrence, is also highly doubtful because there was no reason for him to go at her house after covering such a long distance only to give the information, if he was present at alleged place of occurrence, the FIR would have been lodged by him directly. There is no independent witness of the locality but to support the prosecution story, all the witnesses who have been produced are close relative of the deceased. According to the statement of Ajay Kumar Singh, the deceased were murdered at about 6.30 a.m., it was not possible to cover the distance of 8 km. within half an hour to give such information to the first informant. The FIR of this case is also ante timed, the co-accused Ram Lakhan, Gunjan, Ajit Singh, Sunil Singh, Santosh Singh have been released on bail by another bench of this Court on 19.6.2009 in criminal misc. bail application no 15813 of 2009, the applicant is not having any criminal antecedent, he may be released on bail.;