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., Sri K.S. Tiwari and Sri A.K. Dixit, learned Counsel appearing on behalf of the complainant. This bail application has been moved by the applicant Hameed with a prayer that he may be released on bail in case crime No. 220 of 2009 under sections 302, 506 I.PC, P.S. Girwan, District Banda.
(2.) THE facts, in brief, of this case are that the FIR has been lodged by Munna on 1.7.2009 at 0.15 a.m. in respect of the inci­dent which had occurred on 30.6.2009 at about 9.00 p.m., the distance of the police station was about 7 kms. from the alleged place of occurrence. The applicant is named in FIR as accused. It is alleged that the ap­plicant has cultivated the field of the de­ceased Chhota Yadav by tractor, there was a dispute over the payment of cultivation charges. On 30.6.2009 at about 9.00 p.m., when the deceased was lying on the floor in front of the house, the applicant armed by DBBL gun of his father came there and shot dead the deceased, he was challenged by the first informant and other witnesses who were present there. The applicant dis­charged a second shot causing injuries on the person of the deceased. The applicant extended the threats to the first informant and escaped from the place of occurrence showing the DBBL gun. According to the post mortem examination report, the de­ceased had sustained 3 fire arm wounds of entry and two exit wounds, the applicant applied for bail before the learned Sessions Judge, Banda, who rejected the same on 7.9.2009. It is contended by learned Counsel for the applicant that the alleged occur­rence has not taken place as alleged by the prosecution, at the time of commission of alleged occurrence, no witness was present at the place of occurrence and nobody has seen the manner of occurrence, after commission of the alleged offence, the first informant and other witnesses came at the place of occurrence and lodged the FIR only on the basis of doubt and suspicion because there was no enmity of the applicant with the deceased. The inquest report was prepared up to 9.00 a.m., it shows that the FIR is also ante timed, the prosecution story is not corroborated by the site plan. It is alleged that from the place 'D' the applicant caused gun shot injuries, the dead body of the deceased was found at place 'C', these points were at a narrow passage 3-1/2 feet width, the dead body was not found at place 'A', which was on the floor of the house how the dead body was reached at place 'C', it was not explained. It shows that the alleged occurrence has not been seen by any witness. The prosecution story is not corroborated with the post mortem examination report because the deceased had sustained 3 gun shot wounds of entry, in which injury No. 1 was having blackening around the wound, the direction was down ward, which may not be in a condition when the deceased has sustained injuries in lying condition. According to the prosecution version, only two shots were discharged by the applicant, the deceased had sustained 3 gun shot wounds of entry, there is no explanation of 3rd gun shot wound of entry. The applicant is innocent, he has been falsely implicated in the present case due to village party bandi.
(3.) IN reply of the above contention, it is submitted by learned A.G.A. and Counsel appearing on behalf of the complainant that the applicant is the main accused who caused the gun shot injury on the person of the deceased, the alleged incident was witnessed by the first informant and other witnesses, the FIR has been promptly lodged in the same night. The prosecution story is fully corroborated by the post mortem examination report because it has been clearly mentioned in the post mortem examination report that injury No. 5, the fire arm wound of entry was not caused by the same bullet which had caused the injury No. 3, the fire arm wound of entry having its exit wound injury No. 4, it shows that the deceased had sustained fire arm wound of entries caused by two shots. There is no material infirmity in the site plan and in the inquest report. The applicant was having motive to commit the offence, therefore, the applicant may not be released on bail.;