JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Shiv Sahai with a prayer that he may be released on bail in case crime No. 704 of 2005 under Sections 302/201/34 I.P.C. P.S. Heempur district Bijnor.
2. Prosecution story in brief is that in the present case F.I.R. has been lodged by Sri Gajraj Singh at P.S. Heempur on 15.10.2005 at about 12.30 p.m., in respect of the incident which had occurred in the night of 14/15.10.2005 from 9.00 p.m. to 9 a.m. it is alleged that the agricultural field of the applicant and the first informant are adjoining. There had been some altercation between the grand father of the first informant and the applicant about one year back. The family of the applicant was having annoyance with the family of the first informant but about 3 or 4 days prior the alleged occurrence the applicant started going to the house of the first informant and he used to sit with the deceased. On 14.10.2005 at about 9.00 p.m. the applicant came at the house of the deceased and he called the deceased. Thereafter the deceased was taken by him at the pretext to have a discussion on a issue at his house, But the deceased did not return upto 2.00 a.m. that is why the first informant and others become too much worried then the first informant his brother Narendra and his uncle Dil Bahar went to the house of the applicant where neither the deceased nor the applicant and his family were present, two spades were lying there which gave an indication of an unhappening with the deceased. Thereafter, with the help of villager Veer Singh and Buddhu Singh, the first informant and others went to Jungle in search of the deceased and at about 9.00 a.m., they saw smoke coming out from the field of Himendra. Thereafter, they reached there and saw that the applicant and his son co-accused Devendra and Rakesh burning something but they fled away after seeing the first informant and others. The first informant and others saw the dead body of the deceased which was half burnt.
3. Heard Sri Mahipal 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 dead body of the deceased was found in the morning. Thereafter, the present story was concocted. According to the prosecution version itself the deceased was having inimical relation with the applicant. Therefore, it was highly improbable that the deceased had gone in the company of the applicant in the night of 14.10.2005, which shows that this story is concocted.
II. That there is no direct evidence against the applicant but only evidence against the applicant is that the deceased had gone in the company on 14.10.2005 at about 9 p.m. The evidence of last seeing is only against the applicant.
III. That during investigation prepared recovery memo of spade from the spot, cloths of the deceased but none of the recovery memo was bearing the case number and section.
IV. That the F.I.R. is delayed. It was lodged after thought.
V. That the co-accused persons Devendra Singh and Rakesh Singh have been released on bail by this Court on 12.1.2006 in Criminal Misc. Bail Application No. 339 of 2006. The co-accused Rakesh Singh has been released on bail on 15.1.2006 in criminal misc. bail application No. 2825 of 2006. Therefore, the applicant is entitled to get the benefit of parity.
VI. That the applicant is innocent and he has not committed the alleged offence and he has been falsely implicated due to ill will of the first informant.
It is opposed by the learned A.G.A. by submitting :
1. That the applicant was having strong motive to commit the alleged offence. It was a pre-planned murder that is why the applicant developed enmity with the deceased and in confidence the deceased went in the company of the applicant at his house where he was murdered.
2. That two blood stained spades were founded, in the night itself after committing the murder, the dead body was taken by the applicant and others in the Jungle and nobody was present at the spot.
3. That according to the post mortem report also the deceased had received 12 injuries in which injury Nos. 5, 7, 8 and 10 were incised wounds. The cause of death was anti mortem injuries. The applicant was found near the dead body. He rap away from the place of occurrence leaving the dead body. The case of the co-accused Devendra and Rakesh is distinguishable with the case of the applicant because they have not taken the deceased from his house whereas he was taken by the applicant from his house.
4. That the applicant is the main accused. If in the recovery memo the crime number and sections have not been mentioned, it is a negligence of the I.O., it will not affect the genuineness of other evidence.
5. That the charge sheet has been submitted against the applicant. During investigation credible evidence has been collected to show that the applicant has committed the alleged offence. 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 from the perusal of record it appears the case of the applicant is distinguishable with the case of the co-accused Devendra and Rakesh. The applicant is the main accused, without expressing any opinion the merit of the case the applicant is not entitled for bail. Therefore, the prayer for bail is refused.
5. Accordingly this application is rejected.