Mukesh vs State of U.P.

Shiv Shanker, J.—This first bail application has been moved on behalf of applicant Mukesh in case Crime No. 472 of 2007, u/s 302, I.P.C. read with Section 27 (1) Arms Act, P.S. Jawan District Aligarh.

Heard learned Counsel for the applicant and Sri R.P.S. Chauhan learned Counsel for complainant and learned A.G.A. as well as perused the record.

Learned Counsel for the applicant submitted that allegation has been made against the present applicant and other co-accused persons. On 20.8.07 at about 7.30 a.m., present applicant armed with licensed gun of his father and co-accused Bablu and Ram Prakash armed with country made pistol shot fires upon Titu who sustained fire arm injuries and he was declared dead in the Malkhan District Hospital Aligarh and F.I.R. was lodged against three accused persons falsely. It is further contended that only one injury was found at the chest of the deceased at the time of preparing inquest report of the deceased, while one fire arm wound of entry and one multiple fire arm wound of entry were found as ante mortem injuries upon the dead body of deceased. F.I.R. also reveals that the present applicant had allegedly shot one fire upon the deceased. Therefore, there is material medical conflict in the case. It is further contended that the Investigating Officer prepared the site plan of the place of incident, wherein place ''X'' and ''M'' have been shown in it. ''X'' reveals the place where the deceased was murdered and ''M'' indicates the place where the applicant shot fire upon the deceased. The distance was 14 steps. Therefore, firing was made from a long distance. Therefore, it is impossible that in the wound wadding pieces and Tikli piece would also be found. Therefore, it seems that shooting has been resorted by some unknown person from unknown place and the applicant has been implicated falsely due to previous enmity, i.e., exchange of hot words between deceased and the applicant and the other co-accused persons. It is further contended that co-accused Ram Prakash is father of applicant who was arrested by the police on 11.9.07 from Roadways bus stand who was carrying on his gun in his hand. Therefore, it was shown to be recovered. It is further contended that licensed gun of after of applicant which was allegedly used in committing murder of deceased, was already handed over to Arms Dealer on 8.8.07 for its repairs and it was taken back on 31.8.07 by Ram Prakash. In support of this fact, photostat copy of letter given by the Dealer M/s. Ray and Sons, Arms and Ammunitions Dealer is available on record vide Annexures-7 to 10 of the affidavit. Therefore, licensed gun of father of applicant had already been deposited and it was in the custody of the above dealer on the date of incident also. Therefore, it cannot be used in committing murder of deceased. Therefore, false story has been concocted against the present applicant implicating his father and Ors. due to enmity. It is further contended that Ompal Singh (informant) who is father of deceased is hardened criminal. He was made accused in two murder cases, one case of Section 307, I.P.C. and all three cases are pending for disposal. Therefore, the informant and his son were criminals and had several enemies in the village. Therefore, Titu was killed in the dark night by unknown person because his stomach contains 100 liquid food material and large intestine was found full of faecal matter. It is further contended that the three witnesses have been examined in the present case, complainant Ram Prakash, his two cousin brothers namely Hariom and Gopal. There is no independent witness to support the prosecution case. Therefore, in absence of any independent witness, prosecution story is liable to be suspicious and the applicant has been falsely implicated in this case due to enmity and party bandi in the village.

Learned A.G.A. and learned Counsel for the complainant have opposed the prayer for bail.

This incident had allegedly taken place on 20.8.07 at 7.30 a.m. and F.I.R. was lodged by Ompal Singh, father of deceased on 20.8.07 at 8.45 a.m. after covering distance of 11 kilometres from the place of occurrence, wherein the present applicant and co-accused Bablu and Ram Prakash have been named. Therefore, the F.I.R. has been lodged promptly against the present applicant also.

This is the case of direct evidence. Therefore, motive has no significance in such type of cases, although motive has been alleged that six months ago of this incident, some oral dispute arose in between the deceased and accused persons for not paying money relating to irrigation and due to this reason, the deceased has been murdered in the alleged incident.

The applicant is named in the F.I.R. He is main assailant to commit the crime. It has been specifically stated that the deceased and informant had gone to the house of Hariom for taking money relating to irrigation on the date of incident and were standing infront of house of Hariom. At the same time, the applicant Mukesh shot fire upon Titu in his chest. After sustaining injuries he fell down on the ground and he was declared dead in the hospital. Therefore, the applicant himself committed murder of deceased by causing fire arm injuries with licensed gun of his father. This version is supported with the post mortem report of the deceased as two injuries of fire arm were found on the dead body of deceased. No doubt, firing was not made from a very long distance as the wound wadding pieces and Tikli piece were found on his body. According to the site plan, firing has been shown from a long distance. It may be the mistake on the part of Investigating Officer and accused cannot get any benefit from any mistake of Investigating Officer. Prosecution version is supported with the post mortem report of the deceased. So far as depositing of licensed gun of father of applicant at the time of incident is concerned, it has been shown deposited on 8.8.07 in the aforesaid Arm Dealers and it was taken back on 31.8.07 as per contention of learned Counsel for the applicant. This matter was verified by prosecution. Therefore, this version was found false. Thereafter, complainant has filed an application u/s 340, Cr. P.C., against co-accused Ram Prakash. It has been stated that receipts given on behalf of applicants regarding depositing the said weapon was found forged and the case has been registered as Case Crime No. 246 of 2007, Ompal Singh v. Ram Prakash and Ors. Therefore, false depositing of the said gun was shown on behalf of applicant.

It is also worthwhile to mention here that this plea of defence cannot be considered at the stage of bail. It may be considered at the stage of trial. Therefore, no benefit can be given to the applicant regarding such plea of defence. It is the case of broad day light murder, wherein the F.I.R. has been lodged promptly and the applicant committed murder of deceased by causing fire arm injuries and this version is corroborated with the post mortem report of the deceased. Motive is also established against him. Prosecution has already examined three witnesses who have not been declared hostile. Prosecution story cannot be thrown out merely in absence of any independent witness.

After considering the facts and circumstances I do not find any force in the arguments advanced by learned Counsel for the applicant. Therefore, the bail application of the present applicant is not liable to be allowed.

Consequently, the bail application of the present applicant is hereby rejected.