JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Jitendra alias Jeetu with a prayer that he may be released on bail in case crime No. 138 of 2005 under Sections 393, 302 and 506 I.P.C.O. P.S. Gulawati district Bulandshahar.
2. The prosecution story in brief is that in the present case an F.I.R. has been lodged by one Bharat Bhushan on 9.7.2005 at 9.30 p.m. in respect of the incident which had occurred on 7.7.2005 at 7.30 p.m. and the distance of the police station was about 500 yard from the alleged place of occurrence. The F.I.R. was lodged against the applicant and the co-accused Khalid and Liyaqat It is alleged that the applicant entered into the house of the applicant for the purpose of committing robbery, at that time the deceased Sita Ram, his daughter in law Smt. Geeta Rani and his grand son Piyush were taking meals. The miscreants were armed with country made pistol and knife. They extended threat not to make noise and asked to handover the keys of the almirah. The applicant put the knife at the neck of the wife of the first informant then the deceased catch hold the co-accused Liyaqat but all the three miscreants caused injuries by using knife blows on the persons of the deceased. Consequently, he received injuries and fell down. The shouting was made by the family members, therefore, all the three miscreants ran away from the main gate of the house. The deceased, father of the miscreants died on the spot. It is also alleged that all the three miscreants had come to the house of the first informant about 5 to 10 days back to repair the fan and to set the switch of the computer. All the three miscreants were properly identified at that time and the family members of the first informant.
3. Heard Sri Gaurav Kakkar learned Counsel for the applicant and the learned A.G.A.
4. It is contended by the learned Counsel for the applicant:
I. That there are material discrepancies in the F.I.R. and the statement of the witnesses. In the F.I.R, it was alleged that all the miscreants were armed with country made pistols and knife but during investigation the witnesses stated that the miscreants were armed with knife. In the F.I.R. it was alleged that the accused applicant put the knife on the neck of the wife of first informant but during investigation the witnesses stated that the knife was put on her neck by the co-accused Khalid. In the F.I.R. it was alleged that the miscreants had come at the house of the first informant about 5 or 10 days back but during investigation the witnesses stated under Section 161 Cr.P.C. that they had come about 8 to 20 days prior the alleged occurrence.
II. That the prosecution story is not corroborated by the medical evidence. According to the F.I.R. at the time of alleged occurrence the deceased and some others family members were taking meals but the post mortem examination report shows that the stomach of the deceased was empty.
III That according to the F.I.R. all the three persons caused injury on the person of the deceased but according to the post mortem examination report. The deceased had received four anti mortem injuries, they are incised wounds, out of which injury No. 2 is fatal, injury No. l is simple injury and injury Nos. 3 and 4 are also simple injuries on the non vital parts of the body but it has not been specified as to who caused the injury No. 2.
IV. That even according to the prosecution version, no property was stolen by the applicant and others co-accused persons.
V. That the allegation that at the pointing out of the applicant blood stained knife was recovered, it was a joint recovery because at the pointing out of the three accused persons, the recovery of three blood stained knife was made from the bushes on 10.7.2005, which was planted. It was not supported by any independent witnesses.
5. It is opposed by the learned A.G.A. by submitting
1. That the applicant is named in the F.I.R. He has caused the injury by using knife blows and at his pointing out one blood stained knife was recovered from the bushes and at the pointing out of others co-accused persons also blood stained knife was recovered. It was not a joint recovery because the knife was recovered on the pointing out of each of the accused, which was recovered from the bushes. Attempt was made by the I.O. to procure witnesses but nobody was ready to become the witnesses and the cause of death was anti mortem injuries.
2. That there are some minor discrepancies but they are not fatal for the prosecution therefore, the applicant may not be released on bail.
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 considering the nature of the offence and its gravity and without expressing any opinion on the merits of the case, the applicant is not entitled for bail. Therefore, the prayer for bail is refused.
6. Accordingly this application is rejected.