JUDGMENT Ravindra Singh, J.
1. Heard Sri G.S. Chaturvedi, Senior Advocate assisted by Sri Udai Chandani Learned Counsel for the applicant and learned A.G.A. for the state of U.P.
2. This application has been filed by the applicant Shyam Bahadur Singh alias Khanna with a prayer that he may be released on bail in case crime No. 172 of 2005, under Sections 147, 148, 149, 307, and 302 I.P.C. and Section 7 of the Criminal Law Amendment Act, P.S. Chaubeypur, District Varanasi.
3. The prosecution story of this case, in brief, is that the F.I.R. of this case has been lodged by Sri Shyam Ji Singh at P.S. Chaubeypur, Varanasi on 01.9.2005 at 11.05 a.m. in respect of the incident which had occurred on 01.9.2005 at about 8.45 a.m. The F.I.R. has been lodged against unknown miscreants. The distance of the police station was only 4 kms from the alleged place of occurrence. It is said that on 1.9.2005 Shyam Kanhaiya alias Bala Singh, Rajendra Yadav, Radhey Shyam Yadav and Prem Shankar Singh were going to their house from Banaras by a Indica Car No. WB-74G-2591 at about 8.45 a.m. Some unknown miscreants boarding on a Qualis vehicle came from back side and discharged shots indiscriminately. Consequently, Shyam Kanhaiya Singh and other persons sitting in Indica car became seriously injured. They were taken to medical Varanasi, but injured Shyam Kanhaiya died in the way. The other injured were admitted in the hospital who were under treatment, but subsequently, on the same day of the alleged occurrence Prem Shankar Singh also died. According to post mortem examination report of deceased Prem Shankar Singh he had received one firearm wound of entry on the back abdomen and chest having its exit wound and two lacerated wounds and deceased Shyam Kanhaya Singh alias Bala Singh had received 13 injuries, in which injuries No. 1, 3, 6, 8, 12 are gunshot wounds of entry and injuries No. 4, 7, 9, 10, 11 and 13 were gunshot wounds of exit and injuries No. 2 and 5 were lacerated wounds and injured Radhey Shyam Yadav had received two lacerated wounds and injured Rajendra Yadav had received one lacerated wound caused by firearm.
4. It is contended by the Learned Counsel for the applicant that the applicant is not named in the F.I.R.. During course of investigation the name of the applicant has come into light as an accused. The naming of the applicant is after thought. The statement of the first informant was recorded on 1.9.2005. He stated that about 10 days prior to the alleged occurrence the applicant along with his some friends have created nuisance in a hotel, the deceased Shyam Kanhiya Singh alias Bala Singh was also present in that hotel. He came to know about the nuisance created by the applicant, therefore, the deceased being the material uncle of the applicant was taken by him in a room, where he was beaten, so the applicant has extended a there at to the life of the deceased Shyam Kanhiya Singh alias Bala Singh. The applicant is a criminal. He has kidnapped the daughter of his real maternal uncle about 7 years back and the applicant has remained in jail in connection with many cases, therefore, a suspicion was casted upon the applicant by the first informant. It is further contended that the statement of the injured witnesses were not recorded on the same day of the alleged occurrence. Their statements were recorded on 3.9.2005. they disclosed the name of the applicant as an accused. The naming of the applicant is after thought by the injured witnesses. They have been named only because suspicion was casted by the first informant. It is also surprising that the injured have not disclosed the name of the applicant immediately after the alleged occurrence. In such circumstances no reliance can be placed on the statement of the injured witnesses also. The injured Radhey Shyam Yadav has received lacerated wounds in which one injury was caused by hard and blunt object which has not been explained. Both the injured were examined at S.S.P.G. Hospital, Varanasi whereas the deceased was admitted in Singh Research Medical Centre, Varanasi. The applicant is son of cousin sister of the deceased Shyam Kanhiaya Singh alias Bala Singh. He has been falsely implicated only on the basis of the doubt and suspicion. The applicant was having no motive or intention to commit the alleged offence. The deceased was having criminal history. He was having enmity with several persons. Nothing incriminating has been recovered from the possession of the applicant or his pointing out. There is material contradiction in the statement of the witnesses. The firing was done from back side, therefore, the witnesses were not in a position to identify the real assailants and the story of leaving the car by the witnesses during the course of firing is not probable., even the number of Qualis vehicle has not been disclosed by the witnesses. The applicant is innocent. He has not committed the alleged offence, therefore, he may be released on bail.
5. In reply of the above contention the learned A.G.A. submitted that the applicant is son of cousin sister of the first informant. There is no reason of his false implication. In the present case two persons have lost their lives and two persons have sustained injuries. The injured persons have narrated the whole story and they have disclosed the name of the applicant. It is alleged that the applicant and 3 other co-accused persons have fired indiscriminately, consequently, the deceased and the injured received injuries. The witnesses have clearly stated that the firing was done from the back side. Shyam Kanhaiya alias Bala singh after receiving injuries fell down in that car, then both the injured witnesses ran away after opening the door of the vehicle and they were hiding near a house and saw the alleged incident. There is no delay in recording the statement of the injured witnesses. There is statements were recorded on 3.9.2005 because the I.O. went to the hospital on 2.9.2005 for recording the statements of the injured witnesses, but they stated that they were too much shocked by the alleged firing and due to fear and terror, that is why, they were not in a position to give the statement and they were having a danger to their life also, but on the next date i.e. on 3.9.2005 the statement of the injured Radhey Shyam was recorded in the hospital and the statement of the Rajendra was recorded at his house. Both the injured witnesses gave the statements to the I.O. after having been assured by the I.O. for the security of their life. The delay in recording the statement of the witnesses is properly explained by the prosecution and the applicant is having criminal back ground. He has been involved in case crime No. 222 of 1993, under Sections 147, 323, 394, 504, and 506 I.P.C. and Section 7 of the Criminal Law Amendment, Crime No. 123 of 2004, under Sections 3/25/2 Arms Act and Crime No. 182 of 2004 under Section 3(2) of the National Security Act. All the above cases are P.S. Cholapur, District Varanasi. In case the applicant is released on bail he may tamper with the evidence and may abscond also.
6. Considering the facts and circumstances of the case and submissions made by the Learned Counsel for the applicant, the learned A.G.A. and considering the seriousness of the allegations and gravity of the offence in which two persons have lost their lives and two persons sustained injuries in a broad day light and the applicant's criminal back ground 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.