Amar Saran and D.R. Azad, JJ. - (1.) A prayer for bail to the appellant-applicants has been made in this criminal appeal, which arises out of their conviction by order of the Additional District and Session Judge, (Fast Track Court No. 5) Mathura, dated 20.12.2008, and sentencing them under section 302 read with section 34 IPC with life imprisonment and Rs. 25, 000 as fine under section 302 in ST No. 54 of 2005 (State v. Ram Prakash and others).
(2.) WE have heard Sri S.V. Goswami, learned Counsel for the appellants, Sri Ra jul Bhargava for the complainant and the learned AGA on the prayer for bail to them, and perused the record, written ob jection filed by the State. The incident in question is said to have taken place on the way in village Palson at about 3.30 p.m. on 21.10.2004 in which the two applicants and two other co-accused, whose appeal is connected, are said to have assaulted the deceased Keshav Dev with phaurahas and rod attached to the tractor. The report of this incident was lodged at 4.10 p.m. at PS Gowardhan by the informant, Gauri, PW 1, who was the brother of the deceased. It was argued by the learned Counsel for the appellant-applicants that the two appellants-Deena and Nand Kishor-were not charge-sheeted by the po lice and their names were excluded and they have only been implicated on an ap plication under section 319 Cr.P.C. at a later stage. The FIR was ante-timed because in reply to a question put in his cross-examination PW 1, the informant, stated that he could not dictate the FIR at that stage. When the deceased who had been brought in an injured condition to the po lice station after the incident, was exam ined by PW 3, Dr. Devendra Agarwal of the PHC Gowardhan. It was noted in the majrubi chitthi that the time of the medical examination at the PHC Gowardhan was 4 P.M. The crime number was not mentioned in the majrubi chitthi and the arms carried by different accused were not mentioned in the inquest. It was further argued that ac tually the deceased had died as a result of an accident with the tractor which was found lying nearby and the prosecution has set up a false case because of enmity. It was further stated that the complainant's side were be ing prosecuted in two cases under sections 302 and 308 IPC in which they had been convicted and their appeals are pending in the High Court and in one case under sec tion 376 IPC they had been acquitted. As there was equal or greater enmity with the informant, there was no chance of his having been spared if he was present at the time of the incident. No independent witness of the locality was examined and only chance, in imical and tainted witnesses have been ex amined. The tractor, which was found lying on the spot and on which the accused are said to have arrived at the spot and commit ted the crime, has not been claimed by the accused and its owner had not as yet been identified.
(3.) ON the other hand, the submission of the learned Counsel for the complainant and the learned AGA was that as the appli cants had been named in the FIR and, again, they were named in the evidence, hence they were implicated in the case in exercise of powers under section 319 Cr.P.C. and it was not material if the police for some extraneous considerations ex cluded their names when it filed the charge-sheet From the mere circumstance that in his cross-examination PW 1 Gauri, the informant, stated that he could not dictate the FIR at that stage, was not mate rial because the evidence of this witness was recorded 2-1/2 years after the lodging of the FIR. It was further submitted that as the PHC Gowardhan was at a close dis tance to the police station Gowardhan, it was not at all material if the doctor noted that the deceased (who was then the in jured, Keshav Deo) had been brought to him at 4 P.M. and, as such, a minor differ ence in the time of the lodging of the FIR and time of the arrival of the injured at the PHC cannot lead to the only inference that the FIR was antetimed. The mere absence of the crime number in the majmbi chitthi and non-mention of the arms carried by the accused cannot lead to an inference that the FIR was not in existence till then or that it was ante-timed. It was further argued by the learned Counsel for the complainant that the suggestion that the injury to the deceased was the result of an accident with the tractor is purely a speculative sugges tion and there is no scientific examination of the tractor nor were there any traces of blood found on the tractor which could have constituted any basis for setting up the imaginary case by the accused. It was further submitted that the allegations of repeated crimes by the complainant's side could have provided the motive for the crime and would not be only suggestive of false implication of the accused as motive is a double-edged weapon. The non-examination of the witness of the locality is not fatal as outsiders are reluctant to give evidence in crimes as they do not want to be drawn into the enmities between the parties. Simply because the tractor owner has not been identified cannot lead to an inference that the accused had not arrived at the spot on the tractor. Having considered the rival sub missions of the parties, without expressing any opinion on the merits, we are of the opinion that the appellant-applicants Deena and Nand Kishor - have not been able to make out any ground for grant of bail to them.;