RAVINDRA SINGH,J. - (1.) HEARD Sri Indra Bhan Singh, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Rama Nand Pandey, Sri Narayan Pandey, learned counsel appearing on behalf of the complainant.
(2.) THIS bail application has been filed by Dhruv Chaudhari with a prayer that he may be released on bail in case crime no. 753 of 2009 under section 302 I.P.C. and 3(2)5 of SC/ST Act, Police Station Lalganj, District Basti. The facts, in brief, of this case are that the FIR has been lodged by Smt. Amrawati Devi on 17.8.2009 at 4.45 p.m. in respect of the incident which haf allegedly occurred on 17.8.2009 at 10 a.m., the distance of the police station was about 13 kms. from the alleged place of occurrence. The applicant and co-accused Smt. Bind vasini are named as accused, it is alleged that on 17.8.2009, the first informant was working in the field of maize which was on the back side of her house, after leaving her child Balwant aged about 10 months (deceased) at the door, entrusting its supervision to Manoj Kumar about 10.00 a.m., due to old enmity the applicant and co-accused Bind Vasini committed the murder of the deceased by using scissor blows on the chest of the deceased, at the call given by Manoj, the first informant came at the place of occurrence, she brought the deceased to the hospital where he was declared dead, thereafter she brought the deceased to her house. According to post mortem examination report, the deceased had sustained ante mortem punctured wound on the abdomen. According to the statement of the eye witness Manoj Kumar, aged about 7 or 8 years, the deceased was over lying on a cot, was caught hold by the co-accused Bind Vasini, the applicant used scissor blows causing injury on the person of the deceased, thereafter, he shouted, even his mother came at the place of occurrence. The applicant applied for bail before the Special Judge, (SC/ST Act) Basti, who rejected the same on 29.9.2009. It is contended by learned counsel for the applicant that the FIR of this case is delayed, the first informant is not eye witness, she has lodged the FIR on the basis of the information given by a child Manoj, who is aged about 7 or 8 years, his evidence is not reliable even it is not admissible, there is no other eye witness to support the prosecution story. No recovery of scissor has been made, the applicant is a tenant of the co-accused Bind Vasini, he is book seller, he was having no enmity with the family member of the deceased. It appears that the deceased aged about 10 months had sustained injuries in some other manner, but on account of enmity with the co-accused Bind Vasini, the applicant has been implicated in the present case, the applicant is not having any motive to commit the alleged offence and he is having no criminal antecedent, he may be released on bail.
(3.) IN reply of the above contention, it is submitted by learned A.G.A. that the Manoj, who is child is an eye witness, according to his statement, the applicant has caused the injury on the person of the deceased by using scissor blows, his case is distinguishable with the case of the co-accused Bind Vasini because the role of catching hold is assigned to the co-accused Bind Vasini, she has been released on bail by this court on 8.10.2009. In this case, the applicant has committed the murder of a child aged about 10 months, he may not be released on bail.;