Surendra Singh, J. - (1.) BEING ag grieved by the order of refusal of bail dated 15.10.2008 passed by learned Additional District and Sessions Judge, Hapur, Ghaz-iabad, applicant-Bhagwat alias Bhagat in volved in Case Crime No. 306 of 2008 (S.T. No. 1110 of 2008) under section 302 I.P.C., Police Station Garh Mukteshwar, District Ghaziabad has preferred instant bail appli cation before this Court.
(2.) IN brief the case of the prosecution is that on the date of incident i.e. 24/25.5.2008 the complainant- Phoolwati, her husband Lallu and her daughter Hemwati were guarding the cultivation of bottle guard (Lauki). At about 1.00 O'clock in the night, the accused-applicant-Bhagwat alias Bhagat, Prem Raj and Kanhaiya came there with country-made pistols and on the exhortation of Prem Raj, the accused appli cant-Bhagwat alias Bhagat opened fire which hit in the stomach of husband of the complainant- Lallu who after some time succumbed to his injuries on the way to hospital. The complainant has further al leged that she and her daughter have identified the assailants in the light of torch and on their hue and cry, son of complainant and co-villagers, chaukidar Jai Kishan, Dev Karan, Nanhe and other reached on the spot. After the commission of the crime, the assailants ran away towards south of the village. The F.I.R. of the incident was lodged on 25.5.2008 at 2.50 A.M. Heard learned Counsel for the applicant as well as learned AGA for the State and perused the material placed on record. The applicant is named in the F.I.R. and specific role of firing and causing injury has been attributed to him and the deceased has succumbed to his injuries. There are two natural witnesses, namely, Smt. Phoolwati and Hemawati wife and daughter of the deceased who have seen the occurrence.
(3.) LEARNED Counsel for the applicant has submitted that the incident took place in the night of 24/25.5.2008 at about 1.00 A.M. and no body has seen the incident and the applicant has been falsely impli cated in this crime due to enmity. He has further submitted that as per the allegation of the F.I.R., the applicant has been attrib uted the role of firing and it is he who has fired on the deceased which hit him on his stomach but the perusal of the post mortem report goes to show that injury was on chest cavity deep on the left front of chest 9 cm. behind left nipple at 6 O'clock position and blackening was present. He has contended that the medical report is totally inconsistent with the prosecution version, thus it is additional circumstance which shows that none has seen the inci dent and the applicant has been falsely implicated in this crime. On the other hand, learned A.G.A. has submitted that specific role of firing has been attributed to the applicant due to which the deceased has succumbed to his injury on the spot and there is no delay in lodging the F.I.R. at the police station con cerned which was half kilometre away from the spot. He has further submitted that too much importance cannot be given to minor discrepancies which do not go to root of the matter and shake the basic ver sion of the witnesses, therefore, cannot be annexed with undue importance, moreso when the all important "probabilities fac tor" echoes in favour of the version nar rated by the prosecution witnesses.;