JUDGMENT Ravindra Singh, J.
1. This bail application has been filed by the applicant Vinay alias Matku with a prayer that he may be released on bail in case crime No. 70 of 2005, under Sections 147, 148, 149, 302 I.P.C., P.S. Kandhla, district Muzaffarnagar.
2. The prosecution story, in brief, is that in the present case the F.I.R. was lodged by Satyendra at P.S. Kandhla on 25.2.2005 at 2.30 p.m. in respect of the incident which had occurred on 25.2.2005 at 1.50 p.m., the distance of the police station was about 6 kms from the alleged place of occurrence. The F.I.R. has been lodged against the applicant and co-accused Anurodh alias Pintoo and Karamveer. It is alleged that on 25.2.2005 at about 1.50 p.m. the deceased Rajveer Singh, Pramod, Devendra, Krishna Pal, Ashok and Ram pal were going to Punjab National Bank, Alam. When they reached near the bank one black coloured scorpio car came there, from which the applicant and co-accused Anurodh alias Pintoo, Karamveer and 2 unknown persons armed with automatic firearm came out and all the five accused persons discharged the shots at the deceased Rajveer Singh. He ran towards the bank to save his life but before he could enter in the bank he was shot dead by the applicant and others. The deceased Pramod came in rescue of the deceased Rajveer Singh, but he was also murdered by causing the firearm injuries. The alleged incident was witnesses by Devendra, Krishna Pal Singh, Ashok and Ram Pal who had narrated the entire story to the first informant. The dead body of the deceased Rajveer Singh was lying at the door of the Punjab National Bank and the dead body of deceased Pramod was lying on the road. According to post mortem examination reports the deceased Rajveer Singh had received 4 gunshot wound of entries and 3 gunshot wound of exit. Deceased Pramod Kumar had received 2 gunshot wound of entries, two exit wounds and one abraded contusion.
3. Heard Sri Viresh Mishra, Senior Advocate assisted by Sri Amit Mishra learned Counsel for the applicant, learned A.G.A. for the State of U.P. and Sri S.N. Mishra learned Counsel for the complainant.
4. It is contended by the learned Counsel for the applicant that: -
(i) the first informant is not an eye witness. He has lodged the F.I.R. on the basis of the information received from other person.
(ii) The prosecuting agency itself is not relying upon the statement of the witnesses because in the F.I.R. the applicant and co-accused Anurodh alias Pintoo and Karamveer have been named and two miscreants were unknown persons and the driver of the vehicle was also unknown. It is alleged that except the driver all the accused persons discharged the shots by automatic weapons, consequently, the deceased received injuries, but during the course of investigation, it was revealed that it was a case of gang war. The real assailants were not implicated, but on account of enmity the applicant and other co-accused persons have been named in the F.I.R. and the I.O. came to conclusion that 2 named accused Anurodh alias Pintoo and Karmveer have falsely implicated. Therefore, no charge sheet has been submitted against them, the charge sheet has been submitted only against the applicant. Co-accused Anurodh alias Pintoo is handicapped and co-accused Karamveer Singh has been falsely implicated due to some political reasons.
(iii) The deceased Rajveer Singh was Chariman, he was having enmity with Ram Kishan. Ram Kishan was murdered by one Neetu. Neetu was protected by deceased Rajveer Singh, but in the year 2002 an assault was made on deceased Rajveer Singh. In that case the applicant and Ram Kishan were named as an accused. One Yogesh an associate of Ram Kishan wanted to take a revenge from the deceased Rajveer Singh. Yogesh is also a friend of the applicant. To fulfil the aim of revenge the deceased was murdered by a gang of yogesh, but the applicant has been falsely implicated. Neetu gang had also murdered 4 persons on the patronage of the deceased Rajveer Singh and before committing that murder the aforesaid gang stayed at the house of the deceased Rajveer Singh. One Naresh R/o Tikari was also murdered by deceased Rajveer Singh, but due to fear or some other reasons the witnesses of the present case are not ready to disclose the names of real miscreants but due to enmity they are naming the applicant.
(iv) The fair investigation has not been done because the real assailants have not been charge sheeted , but the charge sheet has been submitted against the applicant only, who is innocent.
(v) The F.I.R. is ante timed. It was not in existence at the time of preparation of the inquest report. According to DCR logbook and the statement of the Constable Raghunath Singh recorded under Section 161 Cr. P. C., the alleged occurrence has been committed by some unknown persons and during investigation 100 persons have filed their affidavits stating therein that the applicant was not present at the time of the alleged occurrence and he has been falsely implicated.
(vi) On the date of the alleged occurrence there was election of Director of Cooperative Society. More than 100 persons were present there, but except 4 persons no one has supported the prosecution story.
(vii) The witnesses mentioned in the F.I.R. are members of one family. They are partisan, inimical and chance witnesses. They were residing at a distance of 2 1/2 kms from the alleged place of occurrence. Their presence at the alleged place of occurrence was highly doubtful and there was no witness of the locality to support the prosecution story.
(viii) The applicant is a respective person. He belongs to a highly reputed family. His uncle Ratanpal Pawar was Principal of a college and he was elected MLA in the year 1993 by defeating to Sri Virendra Singh, presently, a Minister of Government of UP. Sri Virendra Singh is having inimical terms with the family of the applicant whereas the deceased Rajveer Singh was highly associated with him, at his instance also the applicant has been falsely implicated.
(ix) The prosecution story is not corroborated by medical evidence because the anti mortem injuries shows that all the injuries were caused by one weapon whereas role of firing was attributed to 5 accused persons. The entries of inquest report, Chalannash etc. shows that there was overwriting and cutting. It proves the manipulation and anti timing of the F.I.R.
(x) After commission of the alleged offence Head Constable Nagendra Singh was the first person who reached at the place of occurrence where he was informed that the alleged offence was committed by 7 or 8 unknown persons. One Bal Kishan the cousin of the deceased Pramod also reached at the place of occurrence, he categorically stated that no one of village Alam was involved in the commission of the alleged offence.
(xi) The applicant was falsely implicated in some other criminal cases also prior the alleged offence, but he has never been convicted in any criminal case. The applicant is innocent. In case he is released on bail he shall not tamper with the evidence, so he may be released on bail.
5. It is opposed by learned A.G.A. and learned Counsel for the complainant by submitting that the alleged occurrence had taken place in a broad day light at about 1.50 p.m. It has occurred at a public place near the Punjab National Bank. The F.I.R. has been promptly lodged at 2.30 p.m. The distance of the police station was 6 kms from the alleged place of occurrence. The applicant and 4 other miscreants discharged the shots by their automatic firearms, consequently, 2 persons lost their lives. The alleged occurrence was witnessed by many persons. The prosecution story is fully corroborated by the post mortem examination reports because the deceased Rajveer Singh had received 3 gunshot wound of entries and the deceased Pramod had received 2 gunshot wound of entries and one injury was abraded contusion. The nature of the injuries is not the same, therefore, it can be said that all the injuries were caused by one weapon which may be caused by more than one weapon also and there is no such infirmity in the inquest report, chalannas and other documents to show at this stage that the F.I.R. is ante timed. The contention of the learned Counsel for the applicant that about 100 persons have filed their affidavits to show that the applicants were falsely implicated and the alleged occurrence had taken place in some other manner, it is a plea of defence. It can be raised at the stage of trial. All the eye witnesses clearly stated that the applicant, Anurodh alias Pintoo and Karamveer discharged the shots on the deceased and they have committed the alleged offence , the I.O. has not submitted the charge sheet against co-accused Anurodh alias Pintoo and Karamveer on some other extraneous consideration. In such circumstances, it cannot be said that any high power political man was taking interest from the prosecution side. The co-accused persons have committed the alleged offence because they have been assigned the role of firing. Both the co-accused persons can be summoned under Section 319 Cr. P. C. by the trial court on the basis of the statement of the witnesses. The witnesses are natural because on the date of the alleged occurrence the election of the Director was going on.
6. It is further submitted that the applicant is a hardcore criminal. His terror is in whole western U.P. He is involved in following cases:
1. Crime No. 139 of 1996, under Sections 395, 397 IPC, P.S. Kandhala, District Muzaffarnagar
2. Crime No. 43 of 1996, under Sections 147, 148, 307, 324 and 323 IPC, P.S. Binauli district Meerut.
3. Crime No. 51 of 1997, under Sections 147, 148, 149 and 307 IPC, P.S. Kandhala District Muzaffarnagar
4. Crime No. 50 of 1997, under Sections 395, 397 IPC, P.S. Binauli, district Meerut.
5. Crime No. 93 of 1998, under Sections 213 Gunda Act, P.S. Kandhala.
6. Crime No. 92 of 1998, under Sections 307, 504, 506 IPC, P.S. Kandhala.
7. Crime No. 100 of 1998, under Sections 213 Gangsters Act, P.S. Kandhala.
8. Crime No. 328 of 1998, under Sections 302 IPC, P.S. Badaut, district Baghpat.
9. Crime No. 356 of 1998, under Sections 394, IPC, P.S. Badaut, district Baghpat.
10. Crime No. 194 of 2000, under Sections 110 Cr. P. C., P.S. Kandhala.
11. Crime No. 60 of 2002, under Sections 307, 323, 504 IPC, P.S. Kandhala.
12. Crime No. 91 of 2002, under Sections 147, 148, 149, 307, 302 IPC, P.S. Babri, district Muzaffarnagar.
13. Crime No. 128 of 2002, under Sections 25/27 Arms Act, P.S. Babri, Muzaffarnagar.
14. Crime No. 70 of 2005, under Sections 147, 148, 302 IPC, P.S. Kandhla.
15. F.I.R. No. 116 of 1993, under Sections 13, 3, 6 and 7 Gunda Act, P.S. Pundari Kila Kaithal, Haryana.
16. F.I.R. No. 512 of 1994, under Sections 394/ 397 and 307 I.P.C. and Sections 25/7, 154, 59 Arms Act, P.S. Kamal Shahar, Haryana.
17. F.I.R. No. 124 of 1994, under Sections 147, 148, 302 I.P.C. P.S. Pundari Kila Kaithal, Haryana.
18. F.I.R. No. 302 of 1995, under Sections 147, 148, 323, 324, 307 I.P.C., P.S. Kaithal, Haryana.
7. It is further submitted that the contention of the applicant that the alleged occurrence had taken place in a gang war, is having no substance. It is a plea of defence, because the alleged occurrence had been witnessed by several persons. According to the statement of the eye witnesses recorded under Section 161 also no inference can be drawn that the alleged occurrence was a result of gang war. In case the applicant is released on bail, he shall not permit to any witness to depose against him. In such circumstances the applicant may not be released on bail.
8. Considering the facts and circumstances of this case it appears that the alleged occurrence had taken place in a broad day light, the F.I.R. was promptly lodged, the role of firing is assigned to the applicant, in which two persons have lost their lives, both the deceased received gunshot injuries, a strong motive has been attributed to the applicant and the alleged incident has been witnessed by the several persons , the role of firing is assigned to co-accused namely Anurodh alias Pintoo and Karmaveer even then they have not been charge sheeted by the I.O., it will not give any benefit to the applicant, because the names of the above mentioned co-accused persons have been disclosed by the eye witnesses, it demolished the contention of the learned Counsel for the applicant that the applicant has been falsely implicated at the instance of a powerful politician. The applicant has such a criminal background which will frustrate the purpose of bail 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.
9. Accordingly, the bail application is rejected.