JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Subhash Chandra with a prayer that he may be released on bail in Case Crime No. 68 of 2005, under Sections 302, 307 I.P.C., Police Station Achhalda, District Auraiya.
2. The prosecution story, in brief, is that a First Information Report has been lodged by Manmohan at Police Station Achhalda on 11.11.2005 at 9.50 A.M. in respect of an incident which had occurred on 11.11.2005 at about 9.00 P.M. in the vicinity of the Mohalla Hariganj ,Achhalda; Police Station was at a distance of about 1/2 kl.mt from the alleged place of the occurrence The First Information Report was lodged against the applicant and co-accused Rajesh @ Bunti, Shiv veer and Hakim Singh. According to the First Information Report Smt.Santoshi Devi, wife of the deceased and the wife of the applicant had contested the election of the village Pradhan in which the wife of the deceased was elected. From the election of the village Pradhan the applicant and other co-accused persons became inimical with the deceased. On 11.11.2006, the first information, the real brother of the deceased and the deceased were going to their house from the market, when they crossed the railway crossing, they were surrounded by the applicant and three other co-accused persons. The applicant was armed with gun, co-accused Rajesh @ Bunty was armed with pistol, co-accused Shiv veer was armed with country made pistol and co-accused Hakim Singh was armed with revolver. Co-accused Rajesh @ Bunty son of the applicant discharged a shot by the pistol which hit on the head of the deceased Thereafter all the four accused persons including the applicant fired many shots. Consequently the deceased received injuries and died on the spot but luckly the first informant did net receive any injury, the alleged occurrence had taken place at about 9.00 P.M.. The applicant and other co-accused persons were identified in the electric light. It was witnessed by Rajeev and Mukesh and all the accused persons showing their weapons, went towards the railway line after committing the murder of the deceased The first informant went to the Police Station and lodged the First Information Report.
3. Heard Sri G.P. Dixit and Sri Raja Singh, learned Counsel for the applicant, learned A.G.A. and Sri Anil Kumar Sharma, learned Counsel for the complainant.
4. It is contended by the learned Counsel for the applicant that:
(i) that the alleged occurrence had taken place in no the dark hours of the night and there was/sufficient source of light. According to the site plan the deceased was murdered at place 'A' where the dead body was found and the accused persons fired from the place 'B' The distance between 'A' and 'B' is 35 paces. From such a long distance if firing was done, it belied the whole prosecution story;
(ii) that according to the spot inspection note, six empity cartridges of tea brass and two bullets of 315 bores were recovered from the place of the occurrence, no empity cartridge of 12 bore was recovered from the place of the occurrence. It shows that no weapon of 12 bore including the gun was used in the commission of the offence. It is further contended that according to the prosecution version the applicant was armed with the gun and it has been specifically alleged that the co-accused Rajesh @ Bunty caused the head injury by using his pistol and the co-accused Shiv Veer was armed with country made pistol and Hakim Singh was armed with revolver but according to the post-mortem examination report the deceased had received five gun shot wound of entries and two exit wounds, two abraided contusions, two contusions and one abrasion Four gun shot wound of entries were having the same dimension i.e 1 cm. × 1 cm and in injury No. 3 fire arm wound of entry. No dimension was mentioned. It shows that all the injuries were caused either by the revolver or pistol. It is further contended that the presence of the first informant and other witnesses at the place of occurrence is highly doubtful because the first informant is not injured witness and witnesses Rajeev and Mukesh are relatives of the deceased and they are chance witnesses and no persons of the locality were interrogated in support of the prosecution story whereas the alleged occurrence had taken place in the market area.
(iii) that the deceased was also involved In criminal activities and he was involved in criminal case also.
(iv) that the applicant is innocent, he has not committed the alleged offence and he has been falsely implicated due to partybandi of the village.
5. It is opposed by learned A.G.A by submitting that in the present case the First Information Report was promptly lodged There is no inconsistency in the inquest report because it was prepared since 11.40 P.M. on 11.11.2005 to 10.50 A.M. on 12.11.2005 and in inquest report case crime No. 68 of 2005 under Sections 307/302 I.P.C. is clearly mentioned the time of the First Information Report as 9.50 P.M. on 11.11.2005. It is clearly mentioned that the deceased had received injuries caused by the fire arm. The time of the occurrence is 9.00 P.M. and the time of the First Information Report is 9.50 P.M. is clearly mentioned in the Challan Nass(Police Form No. 13)
(i) The alleged occurrence had taken place in market where the electric light was available. The presence of the first informant was net doubtful because the First Information was promptly lodged and he could not receive any injury. The prosecution story is wholly corroborated by the medical evidence because the deceased had received five fire arm wound of entries and two exit wounds. The other injuries are either abrasion or contusion, it may be caused at the time of the commission of the alleged offence. The applicant was armed with gun. In gun also different types of the cartridges either factory made or country made are used, therefore it cannot be said that if any cartridge is used in the gun, it will have the disposal of the pallets and on the basis of the dimension of the injury it cannot be definitely said that it was caused by particular type of weapon. The presence of the witnesses at the alleged piece of the occurrence is not doubtful and at the time of the spot inspection six empty cartridges of brass and two bullets of 315 bore were recovered. It indicates that the different types of the weapons were used in the commission of the offence. Even on the basis of the recovery of the cartridges no definite conclusion can be drawn in respect of the use of the weapons.
6. The applicant was having strong motive to commit the murder of the deceased because his wife has lost the election of the village Pradhan and the wife of the deceased was declared elected. The deceased was having a good reputation in the society and he was not having criminal antecedents, therefore the applicant is not entitled for bail.
7. Considering the facts and circumstances of the case and the submissions made by the learned Counsel for the applicant and the learned A.G.A. 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.
8. Accordingly, this application is rejected.