JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Ram Bahal with a prayer that he may be released on bail in case crime No. 365 of 2005, under Sections 147, 148, 149, 302, 504, 506 and 120B I.P.C. and Sections 3/25/27, 4/25/27 Arms Act, P.S. Captainganj (Kaptanganj) district Kushinagar.
2. The prosecution story, in brief, is that in the present case the F.I.R. was lodged by one Abhay Pratap at P.S. Kaptanganj on 26.9.2004 at 8.45 p.m. in respect of the incident, which had occurred on 26.9.2005 at about 6.00 p.m. in village Pakari Madaraha. The distance of the police station was about 11 km from the alleged place of the occurrence. The F.I.R. has been lodged against the applicant and 5 other co-accused persons alleging therein that on 26.9.2005 at about 6.00 p.m. the first informant, his father deceased Rajendra Singh, Dayaanand and Vinod were going towards the bridge of a canal, they reached in front of the house of one Ghurayi near an electric pole, the applicant and 5 other co-accused namely Mahraj Singh, Balwanti, Vishnu Dayal, Narsingh and Ram Bhajan armed with country made pistol, Ganasa and knife came out from the house of one Vishnu Dayal, the deceased was caught hold by them, the first informant and other witnesses came in his rescue, they were pushed back by the accused persons and co-accused Marhraj Singh caused a firearm injury to the deceased from a close range by the country made pistol, consequently, the deceased became injured, he was dragged by the accused persons and taken in front of the house of one Vishnu Dayal where he was thrown on the land and the injuries were caused by the applicant and co-accused Narsingh, co-accused Ram Bhajan by using Ganasa and knife blows. On hue and cry of the first informant and other witnesses, some other villagers came at the place of the occurrence, they tried to apprehend the accused persons but all the accused persons ran away from the place of the occurrence by flying their weapon in air and extending the threats. The deceased died on the spot. Thereafter, the F.I.R. was lodged. The inquest report was prepared and post mortem of the body of the deceased was conducted on 27.9.2005 at 2.30 p.m. According to post mortem examination report the deceased had received 11 anti mortem injuries out of which the injuries No. 1 is gunshot wound of entry on the abdomen. It was having blackening; injury No. 2 was its exit wound. The injuries No. 3, 4, 5, 6, 7, 8, 9 and 10 are incised wounds and injury no 11 is a lacerated wound. During investigation the statement of the witnesses were recorded and by some witnesses it has been specifically alleged that the applicant Ram Bahal caused injury by ganasa and co-accused Ram Bhajan and Narsingh caused injuries by Knife because in the F.I.R. it was alleged that they have caused injuries by knife and Ganasa.
3. Heard Sri Jagdish Singh Sengar and Sri Ajit Kumar Singh Solanki learned Counsel for the applicant and learned A.G.A. and Sri A.K. Srivastava learned Counsel for the complainant.
4. It is contended by the learned Counsel for the applicant: -
(i) That in the present case the presence of the first informant and other witnesses at the alleged place of occurrence was highly doubtful because they have not received any injury where as the first informant is son of the deceased, the equal motive was against him also if they have tried to save the life of the deceased, they would have been caused injuries. It shows that they were not present at the place of the occurrence because the I deceased was murdered in the way.
(ii) That according to prosecution version co-f accused Mahraj Singh fired by the country made pistol from point blank range. Consequently, the deceased received injury, thereafter he was dragged to the house of one Vishnu Dayal where he was assaulted by Ganasa and knife, but the nature of gunshot injury does not show that it was caused from point blank range. According to post mortem examination report the deceased received incised wound also, but there was no typical knife injury whereas Ganasa was also used in the commission of alleged occurrence.
(iii) That according to post mortem examination report small quantity of undigested food in fluid was found in stomach. It shows that the alleged occurrence had not taken place at about 6.00 p.m. It has taken place at some other time in the dark hours of night In this case the time of the occurrence has been changed and it made anti timed and F.I.R. itself is anti dated, because according to the wireless message it was sent to the police control room, the murder has been committed by firing the shots, according to that message the deceased was not murdered by using knife or Ganasa blows. Even in that message the name of the accused were not disclosed and there is overwriting in the time of lodging the F.I.R. It was completed on 27.9.2005 at 8.30 a.m. It shows that no F.I.R. was lodged at about 8.45 p.m., as claimed by the prosecution but it was lodged in the morning when dead body was found.
(iv) That the recovery of the knife at the pointing of the applicant made from a sugarcane field has been shown by the I.O., it was planted.
(v) That the applicant is innocent he has not committed alleged offence, but he has been falsely implicated only due to election rivalry, as the wife of the applicant namely Pushpa Devi had contested the election of the village Pradhan against Smt Draudapadi Devi the wife of the deceased, who was defeated by a narrow margin. The deceased was president of cane union of Kaptanganj Sugar Mills. He was also involved in a case of under Section 307 I.P.C. He was having multi comer enmity. He was murdered in the cover of darkness of night by some unknown persons. The dead body was found in the morning thereafter the present F.I.R. was lodged.
5. It is opposed by the learned A.G.A. and the learned Counsel for the complainant by submitting that the alleged occurrence had taken place on 26.9.2005 at about 6.00 p.m. in the village abadi. Its F.I.R. was lodged on the same day at 8.45 p.m. The distance of the police station was about 11 km from the alleged place of the occurrence. There was no delay in lodging the F.I.R. and the alleged occurrence had taken place in sunlight and there was no question of recovery of the dead body in the next morning because the deceased was not murdered at any lonely place. He was murdered in the village abadi. It is further contended that the first informant and witness Dayanand and Vinod were also in the company of the deceased when he was murdered and some other persons of the village came at the place of the occurrence who saw the alleged incident. The prosecution story is fully corroborated by the medical evidence, because according to post mortem examination report also the injury No. 1 was gunshot wound of entry it was having blackening. It shows that it was caused from a close range. This injury was caused by country made pistol, which is not a standard firearm. This injury was having exit wound also and the deceased had received 8 incised wounds. There was internal damage also because the membranes were found punctured. The injuries were caused by the ganasa and knife also. It is wrong to say that none of the injury was caused by knife. The F.I.R. was promptly lodged. It was not anti timed, because there was no material irregularity in the inquest report to show that the F.I.R. was anti timed. So for as the wireless message is concerned this messages was sent for the purpose of giving the information to the higher officers and at this stage no importance can be given to such messages. The deceased was murdered by causing injuries by country made pistol, Ganasa and knife and cause of death was anti mortem injuries. The applicant and other co-accused persons have committed the alleged offence; therefore he is not entitled for bail.
6. After considering the facts and circumstances of the case, submissions made by the learned Counsel for the applicant, learned A.G.A. and the learned Counsel for the complainant, 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.
7. Accordingly, the bail application is rejected.