JUDGMENT Ravindra Singh, J.
1. This application is filed by the applicant Lima Shankar Pandey with a prayer that he may be released on bail in case crime No. 96 of 2005 under Sections 302 I.P.C., P.S. Shankargarth, district Allahabad.
2. The prosecution story, if brief, is that in the present case the F.I.R. has been lodged by Pankaj Kumar Pandey at P.S. Shankargarh on 5.9.2006 at 4.45 p.m. in respect of the incident which had occurred on 5.9.2005 at about 3.30 p.m. The alleged occurrence had occurred in the vicinity of village Kapari Khan Semara. The distance of the police station was about 5 km from the place of occurrence. The F.I.R. was lodged against the applicant and other co-accused Ramesh garg, Rakesh Garg and co-accused Onkar Shukla alias Babloo.
3. According to the prosecution version at the time of the alleged occurrence the deceased Om Narayan Pandey was going on his motorcycle from his house to village Shivrajpur for filling the oil. The first informant, riding on his motorcycle, was also going to Shankargarh Market, the witness Babloo was the pillion rider on that motorcycle. At about 3.30 p.m. the motorcycle of the deceased was overtaken by the maruti car and the deceased was intercepted by the applicant and other co-accused persons m they came down from the maruti car, the applicant and other co-accused Ramesh Garg and co-accused Rakesh Garg were armed with firearms (Aslaha) and co-accused Onkar Shukla alias Babloo was armed with rifle. They discharged the shots at the deceased, consequently, he received injuries and fell down. The co-accused persons were challenged by the first informant from the back side, then they fled away by the car towards the village Shivrajpur. The deceased was taken by a tempo to the Government Hospital, Shankergarh where he was declared dead. Thereafter, the first informant went to the police station and lodged the F.I.R.
4. Heard Sri Jagdish Singh Sengar, Sri Vishnu Kumar Dwivedi, learned Counsel for the applicant, learned A.G.A. Sri Kamlesh Shukla and Sri R.K. Shukla learned Counsel for the complainant.
5. It is contended by the learned Counsel for the applicant:
(i) that the first informant is the son of the deceased. According to the F.I.R. he was not in the company of the deceased. He was riding on separate motorcycle and he was legging behind at a distance of 3-4 furlong from the deceased. The other witness Babloo was also pillion rider of the motorcycle of the first informant. Therefore, they were not present at the alleged place of the occurrence and witnessing of the alleged incident by them was highly improbable.
(ii) That the deceased was murdered a the lonely place by some unknown person and nobody has seen the alleged occurrence. The deceased was hardened criminal. He was involved in more than a dozen criminal cases. He was having multi cornered enmity. He was murdered by some unknown persons , buydue to ill will of the first informant and on a suspicion the applicant has been falsely implicated in the present case.
(iii) The deceased was having enmity with co-accused Ramesh Garg and Rakesh Garg with regard to realization of Tahbazari and contract of the broken stones etc. The applicant is tenant of co-accused Ramesh Garg that is why he has been falsely implicated in the present case.
(iv) That in the F.I.R. specific weapon i.e. rifle has been shown in the hands of co-accused Onkar Shukla alias Babloo. No specific weapon was shown in the hands of the applicant. It is alleged that the applicant was armed with Ashlaha, but during investigation it was alleged that the applicant was having country made pistol and the prosecution story is not corroborated by the post mortem examination report. According to the post mortem examination report the deceased has received 6 injuries in which injury No. 1, 3, and 5 were firearm wounds of entry and the injuries No. 4 and 6 were firearm wounds of exit and injury No. 2 was contusion whereas the role of firing is assigned to all the four accused persons, therefore, the false implication of the applicant is not ruled out.
(v) That the F.I.R. is anti timed. It was not in existence at the time of preparation of inquest report, because the first informant is the witness of the inquest report also. The names of the accused persons have not been disclosed in the inquest report.
(vi) The applicant was arrested and the recovery of the country made pistol of 315 bore was planted by alleging that the applicant has confessed before the I.O. whereas he has not confessed before the I.O.
(vii) That the applicant is innocent. He has not committed the alleged offence. He has been falsely implicated due to village partibandi, because prior the alleged occurrence some unknown persons had fired at the deceased in which he had received simple injuries, but the applicant was also named in the F.I.R. which was lodged under Section 307 I.P.C. The applicant is an old person aged about 65 years. He is retired Naib Subedar and he was facilitated by His Excellency the President of India for his excellent services. On the date of alleged occurrence he was not present in the village. Prior the alleged date of occurrence he had gone to the village Karari district Kaushambi, at the house of his daughter where he became ill due to viral attack and he took a medical aid on 5.9.2005 at Parwati Memorial Hospital. Therefore, the applicant is entitled for bail.
6. It is opposed by the learned A.G.A. and by learned Counsel for the complainant by submitting that the alleged occurrence had taken place on a road, in broad day light at about 3.30 p.m. on 5.9.2005 and on the same day, the F.I.R. was lodged at 4.45 p.m. The distance of the police station was about 5 k.m. from the alleged place of occurrence. The F.I.R. was lodge promptly. There was no time for deliberations or consultations. The applicant is named in the F.I.R.. He was having a firearm. The other co-accused persons were also having the firearm. During investigation it has been specified that the applicant was having a country made pistol, the prosecution story is fully supported by post mortem examination report. The deceased had received 6 anti mortem injuries in which injuries No. 1,2,3, and 5 are firearm wound of entries and injuries No. 4 and 6 are firearm wounds of exit. The contention of the learned Counsel for the applicant that the injury No. 2 was simple contusion it was not caused by firearm is incorrect, because it is firearm wound of entry, from this wound one metallic (regular) piece was extracted. It has been sent for ballistic opinion. According to F.I.R. version itself the role of firing is assigned to four accused persons including the applicant and the deceased had received four gunshot wounds of entry. The version of the first informant and other witnesses is not doubtful because according to the F.I.R. itself the deceased was intercepted by the accused persons, by overtaking with a maruti car, there was sufficient time to cover the distance by which the first informant was legging behind. The presence of the witness is natural because immediately after the alleged occurrence deceased was taken by the first informant with the help of tempo driver to the hospital where he was declared dead. Thereafter, he lodged the F.I.R. which is prompt F.I.R. There was no irregularity in the inquest report to show that at the time of its preparation, the F.I.R. was not in existence . In case the first informant is witness of the inquest report, it does not mean that the F.I.R. was not in existence at the time of its preparation , there is no column in inquest report to disclose the name of the accused persons. The applicant was having strong motive to commit the murder of the deceased because four months prior the allegled occurrence the applicant had fired at the deceased in which he had received injuries and the applicant is facing the trial under Section 307 I.P.C. also in which he was released on bail, but to wipe out the evidence of that case he has committed the murder of the deceased. The other co-accused who are also having enmity with the deceased also participated in the commission of the alleged offence. The conduct of the applicant reflects that in case he is released on bail he may tamper with the evidence and the witnesses may be threatened by him, he has already misused the bail granted to him. On this ground alone he may not be released on bail. It is also submitted that on the basis of criminal antecedents also the applicant is not entitled for bail in the cases of day light murder in which F.I.R. is lodged promptly, the applicant is name in the F.I.R. and the prosecution story is fully supported by the medical evidence. In support of this submission the decision of the Hon'ble Apex Court in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and Anr. U.P. Criminal Ruling 2005(1) page 299 has been cited. It is submitted that in case the applicant is released on bail he shall not permit any witness to give the evidence against him and he has misused the bail earlier granted to him, therefore, he is not entitled for bail.
7. Considering the facts and circumstances of the case and submissions made by the learned Counsel for the applicant, learned A.G.A. and learned Counsel for the complainant and considering the fact that in the present case the deceased was murdered in broad day light, F.I.R. was promptly lodged and according to post mortem examination report the deceased has received four gunshots wounds of entry and the the applicant has misused the bail earlier granted to him in the case under Section 307 I.P.C. in that case also the deceased was victim and the applicant has wiped out the material witness (injured) by committing his murder 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. Accordingly, the bail application is rejected.