Heard Sri Janardan Yadav, learned counsel for the applicant, learned A.G.A.for the State of U.P. and Sri N.K. Sharma, learned counsel for the complainant and perused the record.
The applicant Cheeni alias Arvind has moved this application with a prayer that he may be released on bail in case crime no. 584 of 2008 under sections 147,148,149,302 I.P.C. P.S. Shamshabad district Farrukhabad.
The facts, in brief, are that F.I.R. has been lodged by Durgesh Gangwar on 4.10.2008 at about 4.45 p.m. in respect of the incident which had occurred on 4.10.2008 at about 3.00 p.m., the applicant and five other co-accused persons are named in the F.I.R. as accused, distance of the police station was about 6 km from the alleged place of occurrence, it is alleged that the deceased Girish Chandra had given money in advance to the persons belonging to Dhobi and Bhurji caste, for labour purpose, on 4.10.2008 the deceased had gone to their house for the purpose of cutting the paddy crops but the applicant and the co-accused Kuldeep refused to do the work, then the deceased demanded money, which was given in advance, on which some altercation had taken place and there had been some scuffling also, thereafter, the deceased proceeded to his house,as soon as he reached near the guava grove where the co- accused Nitya Ram, Ram Bahadur alias Tarrey, applicant and the co-accused Kuldeep and the accused Rajbir, were already hiding themselves, who were armed with lathi, danda and axe, surrounded the deceased and assaulted him, consequently, he fell down and died on the spot,on shouting the first informant, his nephew and his relative Rajbir came at the place of occurrence, they exhorted the accused persons, they fled away towards the field. According to the postmortem examination report the deceased had sustained 11 ante mortem injuries, which were incised wounds, lacerated wounds and contusion.
It is contended by the learned counsel for the applicant :-
1.That the F.I.R. version is self contradictory, the presence of the applicant at the alleged place of occurrence, may not be because according to the prosecution version the deceased has gone to the houses of the persons belonging to Dhobi and Bhurji caste for the purpose of cutting the paddy crops but the applicant and co-accused Kuldeep refused to do the work where altercation and scuffling had taken place between the deceased and the applicant, immediately thereafter he proceeded to his house but in the way some persons hiding themselves assaulted him, the presence of the applicant immediately after the first incident, cannot be in the group of the persons, who were already hiding in front of the grove of guava. The applicant has been falsely implicated because if it is expected that soon before the alleged incident, there was some altercation or scuffling with the deceased, the two alleged incidents had not been witnessed by any person even according to the prosecution version the first informant, his nephew, Amit and relative Rajbir came at the place of occurrence after the 2 commission of the alleged offence, during investigation also no person came forward claiming to be an eye witness, the statement of the first informant, Durgesh Gangwar, his nephew Amit and his relative Rajbir had been recorded by the I.O. under section 161 Cr.P.C. they stated that they reached at the place of occurrence on hearing hue and cry, they challenged the accused persons, then they ran away towards the field. According to their statement also, they had not seen the manner in which the deceased had sustained injuries, the alleged incident had taken place at the lonely place, it was not a residential area, the alleged incident has not been witnessed by any person, the deceased had been killed at the lonely place by unknown persons but due to the ill will of the first informant, F.I.R. of this case has been lodged against the applicant, because the deceased was having multi- cornered enmity, he was a harden criminal, he was involved in many criminal cases and he was convicted for the life imprisonment in case crime no. 238 of 2006 under section 302 I.P.C. on 25.11.2006 by the trial court. He was involved in six criminal cases including the murder etc.
2.That even according to the F.I.R. and statement of the witnesses no weapon has been shown in the hands of the applicant and other co-accused persons, which also shows that the applicant and other co-accused persons were not seen by the witnesses even after the commission of the alleged offence.
3.That the F.I.R.of this case is ante timed, it was not in existence at the alleged time i.e. 4.05 p.m. on 4.10.2008, because according to the F.I.R.the name of the first informant is Durgesh Gangwar but in the inquest report his name has been mentioned only Durgesh, the crime number has been subsequently added in the same manner in the inquest report Chhoto Nath etc subsequently added, as is apparently visible,which shows that at the time of the preparation of the inquest report, F.I.R. was not in existence.
4.That the I.O. has planted axe at the pointing out of the applicant, recovery of the axe was made from the buses, which has been planted so that the applicant may be connected with the commission of the alleged offence.
5.That according to the recovery memo the sharp edged portion of axe (head) was 8 angul (vaxqy) long i.e. 6 inch but the deceased has sustained only one incised wound having the dimension 4 x1 cm the same cannot be recovery weapon.
6.That the applicant is innocent, had he has committed the alleged offence, he is in jail since 3.10.2008.
In reply to the above contention it is submitted by the A.G.A. and the learned counsel for the complainant that the applicant is named in the F.I.R., the applicant and four others co-accused persons were armed with lathi,danda and axe, it is not necessary to specify the weapon of each accused, the F.I.R. has been promptly lodged, the deceased has sustained injuries caused by sharp edged weapon and blunt object, the first informant and his nephew Amit and his relative Rajbir came at the place of occurrence immediately on hue and cry, the deceased was involved in criminal cases and he was convicted by the trial court, it does not mean that any person has a right to commit his murder.
Considering the submissions made by the learned counsel for the applicant and the learned A.G.A. and the learned counsel for the complainant and from the perusal of the record, it appears that the applicant and four co-accused persons are named in the F.I.R. according to the F.I.R. and statement of the witnesses of the first informant Durgesh Gagwar, his nephew Amit and his relative Rajbir, came at the place of occurrence, after the commission of the alleged offence, on hearing hue and cry, they saw the accused persons, they have not specified any weapon in the hands of the applicant and other co-accused persons, the alleged occurrence has taken place in a lonely place, the deceased was having criminal antecedent, even he was convicted under section 302 I.P.C., he was having multiple cornered enmity, according to the F.I.R. the persons, who were hiding themselves near the guava grove, had assaulted the deceased when he was coming back from the house of the applicant where some altercation and scuffling had taken place with the applicant and the co-accused Kuldeep, the name of the applicant and Kuldeep had already been mentioned in the persons, who were already hiding, the applicant is having no criminal antecedents and without expressing any opinion on the merits of the case, the applicant is entitled for bail.
Let the applicant Cheeni alias Arvind involved in 584 of 2008 under sections 147,148,149,302 I.P.C. P.S. Shamshabad district Farrukhabad.be released on bail on his furnishing a personal bond and heavy sureties to the satisfaction of the Court concerned with the condition.
• That the applicant shall not tamper with the evidence.
• That he shall report to the court of C.J.M. concerned in the first week of each month to show his good conduct and behaviour till conclusion of the trial.
In case of default in any of the above mentioned conditions, the bail granted to the applicant shall be deemed cancelled and he shall be taken into custody forthwith.
Dt. 22.1.2010 NA