JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Irshad with a prayer that he may be released on bail in case crime No. 114 of 2003 (S.T. No. 85 of 2004 - State of U.P. v. K. Sen and Ors. under Sections 376, 302 and 210 I.P.C. P.S. Ami Nagar Sarai district Baghpat.
2. According to the prosecution version, the alleged occurrence had taken place on 15.8.2003 at about unknown time in the jungle of adjoining town Ami Nagar. Its F.I.R. was lodged by Jang Bahadur, father of the deceased on 16.8.2003 at 3.30 p.m. the distance of the police station was about half k.m. from the alleged place of occurrence. According to the F.I.R. the deceased Km. Arti was a student of class VI. She had gone from her house at about 6 a.m. on 15th August, 2003 to attend the flag hoisting ceremony in her college. After attending that function she left the college at about 10.15 a.m. but she did not reach to her house. Thereafter search was made by the first informant and information of her missing was given to the police station concerned on 16.8.2003 at about 1.30 p.m. The dead body of the deceased was recovered from the sugar cane filed. The dead body was having wounds and it was appearing that she was raped thereafter she was brutally murdered. Near the dead body, the shocks, and other articles including umbrella of the deceased were recovered.
3. Heard Sri Satyendra Narain Singh learned Counsel for the applicant and the learned A.G.A.
4. It is contended by the learned Counsel for the applicant:
I. That the applicant is not named in the F.I.R. The dead body of the deceased was recovered from the sugar cane field and there is no direct eyewitness account. The applicant has been falsely implicated in the present case only on the basis of doubt and suspicion. The only evidence against the applicant is that his name has been disclosed by the co-accused Sonu whose statement has been recorded under Section 161 Cr.P.C. He has disclosed the name due to enmity. In the present case Criminal Misc. Bail Application No. 91211 of 2004 was allowed by the Hon'ble M.P. Singh, J. on 22.6.2004 but the bail granted to the applicant has been cancelled by the apex court on 11 March, 2005 only because the order dated 22.6.2004 was not a reasoned order and the bail was granted to the applicant on the basis that co-accused Irfan has been granted bail on similar facts and allegations. However, Irfan was granted bail only because he was held to be a juvenile.
II. That in this case proper investigation was not done and without any cogent evidence the charge sheet has been submitted against the applicant. The name of the applicant was disclosed by the witnesses Tej Pal whose statement was recorded on 28.8.203 under Section 161 Cr.P.C., which shows that the applicant and the other three co-accused persons came out from the sugar cane filed striking with consternation. The same statement was given by witness Udaiveer.
III. That no reliance can be placed on such statement which was recorded after thought and deliberation and nothing incrementing was recovered form the possession of the applicant or at his pointing out. The co-accused Irfan alias Kalu has been released on bail by this Court on 21.4.2004 in Criminal Revision No. 1689 of 2004 only because he was declared juvenile and on the same ground co-accused Mehboob alias Chand has been released on bail by this Court on 14.5.2004 in Criminal Revision No. 2217 of 2004 and co-accused Sonu alias Shadab has also been released on bail by this Court on the same ground on 7.7.2004 in criminal revision No. 2715 of 2004.
IV. That the applicant was released on bail by this Court on 22.6.2004 but he has not misused bail granted to him, in such a situation the applicant may be released on bail.
5. It is opposed by the learned A.G.A. by submitting:
1. That in the present case a minor girl aged about 13 years, a student of class VI has been forcible raped and thereafter she was murdered by the applicant and other co-accused persons. According to the post mortem examination report 12 anti mortem injuries were found. Injury No. 11 A is noted as hymen lacerated and laceration of post part of vagina vagina seize 1.5 cm x 1 cm bleeding from the vagina present, which shows that the deceased was raped prior her murder and the applicant was seen coming out from the agricultural field by independent witnesses striking with consternation, and other co-accused have been released on bail only because they were declared juvenile but according to the nature of gravity of the offence they were also not entitled for bail. The applicant was also released on bail on the ground of parity by concealing the material fact that the co-accused were released on bail only on the ground that they were declared juvenile. The case is at the evidence stage. The statement of the first informant Jang Bahadur has been recorded by the trial court in such a situation he may not be released on bail.
6. Considering the facts and circumstances of the case and the submission made by the learned Counsel for the applicant and the learned A.G.A. and without expressing any opinion on the merit of the case the applicant is not entitled for bail. Therefore, the prayer for bail is refused.
7. Accordingly this bail application is rejected.