RAVINDRA SINGH,J. - (1.) HEARD Sri V.P. Srivastava, Senior Advocate assisted by Sri Lav Srivastava, learned counsel for the applicant, learned A.G.A. for the State of U.P. and perused the record.
(2.) THIS bail application has been filed by the applicants Saurabh Shivhare and Amit @ Kutti with a prayer that they may be released on bail in case crime No. 301 of 2008 under sections 147, 148, 149, 302, 201, 120-B IPC, P.S. Attarra, District Banda. The facts, in brief, of this case are that Sri Shyam Sundar Pathak, father of the deceased Pankaj Pathak lodged a missing report of his son at police station, Attarra on 8.9.2008 at 8.20 P.M., alleging therein that his son Pankaj Pathak was an agent of LIC, on 28.8.2008 at about 12 O'clock in day some unknown persons gave a telephonic message, thereafter the deceased went out from the house. He made a request for search of his son, thereafter the first informant Shyam Sundar Pathak lodged the report dated 11.9.2008 at police station, Attarra in case crime No. 301 of 2008 under section 147, 148, 149, 302, 201, 120-B IPC alleging therein that on 28.8.2008 at about 12 O'clock in day the deceased was taking the meal then somebody conveyed the telephonic message, he left the house by saying that he would come back after going to the house of co-accused Chintu Shivhare. Thereafter he did not return and no whereabouts could be known, his mobile phone was switched of. Missing report was registered on 8.9.2008, it is alleged that a dead body was found in the cattle house of the Dinesh Shivhare who reported the police station that his son Chintu Shivhare has committed suicide. In the night the post mortem examination of the dead body was conduct, thereafter in the morning the cremation of the dead body was done. The dead body was badly burnt, even the skin of the left hand was taken out, co-accused Dinesh Shivhare did not permit any person to see the dead body. On 9.9.2008 at about 8.00 P.M. the witness Narendra Bajpai came to the first informant who stated that he had came to his house on 28.8.2008 at about 12.20 P.M. for taking a policy of the insurance through deceased Pankaj where he was told that the deceased Pankaj had gone to the house of co-accused Chintu, thereafter he also went to the cattle house of the co-accused Chintu, he saw through the window that co-accused Dinesh Shivhare, co-accused Chintu Shivhare, co-accused Bachchi Yadav, co-accused Kallu and applicants were assaulting the deceased Pankaj by using Sabbar and Gadasa blows. Consequently he fell done, due to fear he did not disclose this fact to anybody. The dead body which was claimed by the co-accused Dinesh Shivhare as his son Chintu, which was found in his cattle house was not in fact of the Chintu, it was the dead body of the deceased Pankaj. Hearing to it the first informant was astonished then he went to the house of co-accused Bachchi Yadav, initially he denied to say anything then the first informant narrated the whole story as told by Narendra Bajpay then he stated that you have known the whole story, the dead body recovered from the cattle house of co-accused Dinesh Shivhare was of his son Pankaj. He was killed by co-accused Dinesh Shivhare, Chintu Shivhare, Saurabh Shivhare and Amit Shivhare and Kallu Shivhare. Thereafter he was set on fire but he did not do anything, he has also extended the threats to him not to disclose that the dead body was of Pankaj. He was allure that from the insurance money of the co-accused Chintu, some of the money would be given to him. On this allurement and due to fear of the co-accused persons he was silent. He also disclosed that the clothes of the deceased Pankaj were put off, thereafter Baniyan and Chaddhi (under garments) of co-accused Chintu were put on, the clothes of the deceased Pankaj which were blood stand taken out by the co-accused Dimpy, the wife of Chintu. During investigation the Sabbar and Gadasa used in commission of the murder were recovered at the pointing out of the co-accused Dinesh Shivhare from the room of cattle house. The co-accused Chintu Shivhare to whom it was declared, he was murdered was arrested by the police who made the confessional statement before the police. He stated that the deceased Pankaj was his friend, he was called by him through a telephonic message, thereafter the liquor was provided to him and killed by him and other co-accused persons because due to loss in gambling he was under the loss of Rs. five lacs. He was having the insurance of Rs. Seven lacs, it was told by the LIC agent that in case of causality the amount of Rs. 15 Lacs would be given to his family members. The inquest report was prepared in the false name of Chintu @ Pawan Kumar on 28.8.2008 up to 6.30 P.M. on the basis of the information given by the co-accused Dinesh Shivhare that at about 1.30 P.M. on 28.8.2008 his son Chintu @ Pawan Kumar has committed suicide by putting himself on fire, the burnt Baniyan was found on the dead body, thereafter the post mortem of the same dead body was conducted in the night at about 1.30 A.M. on 29.8.2008. The deceased has sustained four lacerated wounds and fifth ante mortem injury was on the left fore arm, hand was absent from about middle part of the fore arm. The deceased had sustainer post mortem injury as superficial of deep burn all over the body except sole of right foot. The cause of death was as a result of ante mortem injuries. In stomach of the deceased undigested food was found. The applicants applied for bail before learned Sessions Judge, Banda who rejected the same on 4.12.2008.
(3.) IT is contended by learned counsel for the applicant that according to prosecution version the deceased had gone from his house on 28.8.2008 at about 12 O'clock in day, thereafter no information was given to the police station but at a very belated stage the information of the missing was given to the police station by the father of the deceased Shyam Sundar Pathak on 8.9.2008 at 8.30 P.M. In that application also no allegation was made against the applicant and other co-accused persons. But surprisingly first informant lodged the FIR on the basis of the information given by the Narendra Bajpai who claimed himself to be eye witness. It is also surprising that after witnessing the alleged incident on 28.8.2008 he remain silent up to 9.9.2008, it shows that he had not seen the alleged incident but for the purpose of false implication of the applicants he introduced himself as an eye witness. No reliance can be placed on the statement of Narendra Bajpai, except Narendra Bajpai there is no witness to support the prosecution story. In the present case in the name of Pankaj no inquest report has been prepared and no post mortem examination was done. It can not be said that the dead body recovered from the cattle house of co-accused Dinesh Shivhare and others was of Pankaj, the son of the first informant and other statement are the statement of the witnesses. So far as the statement of the witness Prem Chand are concerned who has stated that co-accused Dinesh Shivhare lodged the false report at the police station alleging that his son Chintu has committed suicide. He had come to know that for mis appropriation of the money of the insurance, in a pre planned manner, the dead body of the deceased Pankaj Pathak was claimed as of Chintu Shivhare whereas co-accused Chintu Shivhare was absconding. There is no other evidence against the applicants. The co-accused Smt. Chunni Devi wife of co-accused Dinesh Shivhare and co-accused Dimpy wife of co-accused Chintu @ Pawan Kumar Shivhare have been released on bail by the another bench of this court on 16.4.2009 in Crl. Misc. Bail Application No. 9140 of 2009 and the co-accused Bachchi Yadav @ Vijay Yadav has been released on bail by the another bench of this court on 15.7.2009 in Crl. Misc. Bail Application No. 12257 of 2009 and co-accused Kallu @ Shailendra Shivhare has been released on bail by the another bench of this court on 13.10.2009 in Crl. Misc. Bail Application No. 23525 of 2009. The case of the applicants is based on the same footing with the case of the co-accused Bachchi Yadav @ Vijay Yadav and Kallu @ Shailendra Shivhare, therefore, the applicants may also be released on bail.;