- (1.) D. K. Trivedi, J. This is a bail application on behalf of Balai Singh who is involved in a case under Sections 120-B and 302, I. P. C. and under Section 25/27, Arms Act.
(2.) I have heard Sri Ashwani Kumar Singh and Sri Vijal Vicar on behalf of the Applicant and Sri Parmesewar Dayal and R. B. Khare Singh appeared on behalf of C. B. I. The contention of the learned counsel It that there is no eye witness in this case and the evidence against the applicant is of circumstantial in nature. The learned counsel for the applicant pointed out that the role assigned to the applicant is that he was sitting in the Maruti Van with a carbine and further on his pointing out a -9 mm pistol was recovered from the grove of one Dhunni Singh father of Akhilesh Sin ?h the co-accused. According to the prosecution case Bhagwati Singh was armed with this pistol at the time of the incident, it was further pointed out that the co-accused Sanjay Singh, Tinku, Driver of the van Akhilesh Singh and Amita Modi have already been released on bail. According to the learned counsel for the applicant, the evidence against the applicant is the same as alleged against Tinku except the fact that a -9 mm pistol was recovered on the pointing out of the accused from the grove which an open place. The learned counsel further pointed out that it is not disputed that the applicant was not known to the witnesses mentioned in the first information report and the witnesses who were introduced by the 0. B. I. and further they stated that they can identify the accused, but in spite of this fact the applicant was not put up for identification. Only the co-accused. Amar Bahadur Bhagwati Singh were put up for identification. The counsel further pointed out that the case was initially investigated by the police and thereafter the investiga tion was transferred to C. B. I. on 2-8-88. On 4-8-88 statement of Kishan Bahadur a Rikshaw pullar was recorded by the C. B. I, who staled that he saw a Maruti Van No. 1959 OYG or HYO. The statement of Mahendra Awasthi was recorded on 5-8-88 and Mahendra Awasthi stated that he saw Bhagwati Siagh, Balai Singh, the applicant, Tinku and Amar Bahadur near the placa of occur rence just before the incident. The applicant Balai Singh surrendered in the Court on 17-8-88 and on the request of C. B. I. he was handed over to C B. J. on 22-8-88 for interrogation. On the next day, a pistol of -9 cam was alleged to be recovered from the grove on the pointing out of the applicant. The learned counsel placed the recovery memo which shows that the applicant had stated that he will get the pistol recovered from one grove. Later on the said memo shows that the grove belong to Dhunni Singh father of Akhilesh Singh. Lastly he pointed out that according to the report of the ballistic experts injuries found on the deceased could have been caused by '38 ballot which shows that the pistol of 19 mm had not been used in the said incident. On the other side Sri Parmeshwar Dayal, counsel for the C. B. I. pointed out that the chain of circumstances clearly proves the prima facie guilt of the accused and therefore he is not entitled to be released on bail. He point ed out that Mahendra Awasthi is an independence person and the applicant was known to him and he saw the applicant along with others at place of occur rence just before the incident. Ho stated that it was not disputed that Btlai Singh is guard and party man of Akhilesh Singh and Akhilegh Singh is connected with Sanjay Singh. He stated that Amar Bahadur Singh was arrested on 16-8- 88 and on his pointing out a -38 revolver was recovered from the house of Balai Singh. He further pointed out that the pistol of '9 mm which was recovered on the pointing out of the applicant in fact 'vas stolen from Dehra-dun and Balai Singh was also accused in the said case. The counsel further stated that there is evidence of Bhagwan Das Bax and Mahendra Singh which shows that the applicant Balai Singh as also seen on the date of the incident with Amar Bahadur Singh and Bbagwau Singh. The counsel further pointed that Abdul Khalid owner of the Maruti Van gave a statement that Afchilesh Singh had taken his Maruti Van and handed over his Gypsy to Abdul Khalid
(3.) LASTLY it was alleged that there are several cases pending against the applicant and therefore the applicant is not entitled to be released on bail. The learned counsel for the C. B. I, and it clear that there is no question of identifica tion as it is not the case of prosecution that the two witnesses namely Prem and Kesar Bai identified the persons who were sitting In the Maruti Van. They clearly stated that they can identify the two persons who took part in actual killing of Syed Modi. The trial is still pending and in the interest of justice, I am not making any observation on the merits of the case. Moreover, after hearing the parties, it transpires that there is no eye-witness in this case. The evidence against the applicant is of circumstantial in nature. The evidence of Mahendra Singh only shows that the applicant was seen near the place of occurrence along with other co-accused. The role of actual killing was assigned to the co-accused Amar Bahadur Singh and Bhagwati Singh. According to the prosecution cake fief the applicant Balai Singh remained sitting in van. it is alleged that a pistol of '9 mm was recovered from the grove of Dhunni Singh on the pointing out of the accused. The ballistic report shows that the injuries found on the dead body of Syed Modi could have been caused by the -38 bullet. In view of the report prima facie it is to be said that a '38 pistol was used in the killing of Syed Modi. The -38 pistol was recovered on the pointing out of Amar Bahadur Singh. The motive is assigned Sanjay who has already been released on bail. The main architect of this conspiracy is Akhilesh Singh who has also been released on bail. The applicant admittedly did not take active part in the killing of Syed Modi. According to prosecution case itself witnesses mentioned in the F. I. R. did not recognise the persons who had sitting in the van and therefore the appli cant was not put up for identification. The only evidence is of Mahendra Singh who alleged that he saw the applicant along with other co-accused some time before the incident near the place of occurrence. Keeping in mind the above-mentioned facts, I am of the opinion that the applicant Balai Singh is also entitled to be released on bail.;