Updesh alias Shibbey vs State of U.P.

Shiv Shanker, J.—This is the first bail application moved on behalf of the applicant Updesh alias Shibbey in Case Crime No. 306 of 2005, under Sections 147, 148, 149, 302, 504 and 506, I.P.C., P. S. Kisni, district Mainpuri.

Briefly prosecution case, according to the F.I.R., is that on 28.11.2005 at 10.00 p.m. first informant Akhilesh Singh Yadav, his brother Rampal, villagers Uadayveer, Ramveer, Rajveer, Puttu Lal, Brij Bhushan were warming by burning dry paddy plants. At the same time accused Updesh alias Shibbey, Nirvesh alias Nebbey, Sadesh, Bhoora, Shiv Das armed with countrymade pistols reached there. Accused Updesh and Bhoora started abusing by saying that why you have not given vote to her mother in the election of Pradhan upon which they said that votes have been casted according to their wishes. Thereafter, they said by raising alarm to kill them upon which accused Updesh and Bhoora opened fire upon them. Consequently, Ram Pal and Udayveer sustained firearm injury and died on the spot. Thereafter, they fled away from there. F.I.R. was lodged against them on 29.11.2005 at 6.45 a.m.

Heard learned Counsel for the applicant and learned A.G.A.

It is contended by learned Counsel for the applicant that wireless message was sent on 29.11.2006 at 1.20 p.m., regarding the incident. According to the G.D. Entries of the police station Kisni it was mentioned in the wireless message that F.I.R. is being registered. Therefore, this shows that F.I.R. was not in existence before 1.20 p.m. on 29.11.2005. However, F.I.R. had come into existence on 29.11.2005 at 7.45 a.m. This shows that F.I.R. is ante-timed. It is further contended that it was lodged with delay of nine hours. No sufficient explanation has been given regarding it. It is further contended that one ante mortem firearm injury was found on each of them. Therefore, two accused have been nominated to cause firearm injury upon the dead body of the deceased wherein one of the present applicant was implicated by making false case. It is further contended that no sufficient explanation has been given regarding sending wireless message in the counter-affidavit. It is further contended that mother of the accused had won the election of Pradhan. Therefore, motive is not established against the complainant. Therefore, he has been implicated falsely due to election enmity.

Learned A.G.A. has opposed the bail application stating that it is the case of double murder of direct evidence.

This occurrence had allegedly taken place on 28.11.2005 at 10.00 p.m. while F.I.R. was lodged on 29.11.2005 at 6.45 a.m., after covering distance of 20 kilometers. Therefore, it has been lodged for about eight hours 45 minutes delay. Such delay has been explained in the F.I.R. that it was not lodged in the same night due to fear. This incident had allegedly taken place in the month of November, i.e., cold season. Next day in the morning it has been lodged at 6.45 a.m.

So far as the wireless message is concerned, copy of the wireless message has not been filed on behalf of the applicant. It has not mentioned in the rejection order of the applicant by Sessions Judge that word ''F.I.R. is being registered'' has not been given on behalf of the proseuction in the counter-affidavit. It is worthwhile to mention here that it may be mistake of the concerned Police Officer to send message with delay. It can be considered after recording the statement of the concerned police officer. At this stage merely on the basis of wireless message it cannot be presumed that F.I.R. was lodged as ante-timed.

It is worthwhile to mention here that it has been mentioned in the F.I.R. and statement of prosecution witnesses that the present applicant alongwith the co-accused Udayveer only shot fire upon both the deceased. Consequently, both sustained one firearm injury on each of them and died on the spot. This is the case of double murder based on the direct evidence. It is corroborated or supported with the post mortem report of both deceased. The motive has no significance in the case of direct evidence. Enmity is the double edged weapon which cuts both ways either to commit the offence or implicate falsely. In the present case, mother of the accused had contested the election of Pradhan and informant party did not support. However, she won the election. In such circumstances, it is natural to keep enmity in his or their mind. On that basis, he alongwith the others committed murder of both persons. Motive is also established. Prima facie case against him is made out. Applicant is the main assailant in committing the murder of the deceased alongwith the co-accused Udayveer.

After considering the facts and circumstances of the case, I do not find any force in the argument of learned Counsel for the applicant.

After considering the gravity of the case, bail application of the present applicant is not liable to be allowed.

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