Shamshad vs State of U.P.

Ravindra Singh, J.—This application has been filed by the applicant Shamshad with a prayer that he may be released on bail in Case Crime No. 25 of 2007 u/s 302, I.P.C., P. S. Aliganj, District Etah.

The facts in brief of this case are that the F.I.R. of this case has been lodged by Mustaq at P. S. Aliganj on 30.1.2007 at 10.00 p.m. in respect of the incident which had occurred on 30.1.2007 at about 9.30 p.m. The applicant and three other co-accused persons are named in F.I.R. The distance of the Police Station was about one km. from the alleged place of occurrence. It is alleged that at the time of the alleged incident the deceased Mushir alongwith other persons was present at the door of his house then the applicant and three other co-accused persons came there and asked to commit the murder of the deceased. The deceased was caught hold by co-accused Shakil and Bhura, at the exhortation of co-accused Sajjad the applicant discharged the shot by a country-made pistol which hit on the right eye of the deceased consequently he fell down. The alleged occurrence was witnessed by the first informant and Ors. in the road light and the light of generator thereafter the applicant and other co-accused persons fled away from the place of occurrence discharging the shots in the air. The deceased was taken by the first informant and Ors. in a TATA 407 vehicle for providing the medical aid but he succumbed to his injuries at a chauraha thereafter the dead body was taken to the Police Station and lodged the F.I.R. According to the post-mortem examination the deceased has sustained five injuries in which injury Nos. 1, 3 and 5 were fire arm wounds of entry, injury Nos. 2 and 4 were fire arm wounds of exit, injury No. 1 was on right eye, injury No. 3 was gun shot wound of entry on front of right shoulder, injury No. 5 was fire arm wound of entry on front of left shoulder. The applicant applied for bail before learned Session Judge, Etah who rejected the same on 18.3.2008, being aggrieved from the order dated 18.3.2008 the applicant has moved the present bail application.

Heard Sri J. S. Sengar, Sri Jai Shanker Audichya and Sri Hari Prakash Mishra, learned Counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Nasiruzzaman, learned Counsel for the complainant.

It is contended by learned Counsel for the applicant that the alleged occurrence has taken place in the dark hours of the night. The presence of the first informant and other witnesses at the alleged place of occurrence was highly doubtful. At the time of Commission of the alleged offence none of the witness was present there because it has been specifically alleged in the F.I.R. that the applicant has discharged the shot by a country-made pistol which hit near the left eye consequently the deceased fell down but according to the post-mortem examination report of the deceased the deceased has sustained three fire arm wounds of entry. All the injuries were having different sheets. The injury No. 3 caused by three shots not by one it also shows that the alleged incident was not witnesses by the applicant. After considering the post mortem examination the material improvement has been made in the statement of the first informant Mustaq recorded u/s 161, Cr. P.C. by the I.O. that the first shot discharged by the applicant hit the deceased near right eye thereafter the co-accused Shakil and Bhura also caused gun shot injuries by their arms namely revolver and country-made pistol respectively. According to the prosecution version all the injuries were caused from a close range but none of the injury was having blackening, tattooing or charring, it shows that all the injuries were caused on the person of the deceased from a long distance. The F.I.R. of this case is ante timed. The prosecution story is not corroborated by the site plan because according to the site plan no blood was found at the alleged place of the occurrence. There was no motive or intention to the applicant to commit the alleged offence. The applicant is not having criminal antecedent, he has been falsely implicated on account of village party bandi whereas the deceased was a history sheeter, he was convicted for life imprisonment u/s 302, I.P.C. He was killed by some unknown persons, the co-accused Jakir alias Bhura, Shakil and Sajjad have been released on bail by learned Sessions Judge, Etah in S.T. No. 200 of 1990 on 3.6.1999, therefore, the applicant may also be released on bail.

In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the complainant that in the present case the presence of the first informant and other witnesses is highly doubtful because as soon as the deceased sustained injury he was kept on a TATA 407 vehicle and was taken to provide medical aid but unfortunately he succumbed to his injuries in the way then he was taken to the Police Station in that vehicle where the F.I.R. was lodged. The F.I.R. has been promptly lodged within half an hour whereas the distance of the Police Station was about one km. from the alleged place of the occurrence. In F.I.R. it has been specifically alleged that the shot discharged by the applicant hit near the left eye but in F.I.R. it cannot be mentioned that two other co-accused persons have also caused gun shot injuries on the person of the deceased only because it was lodged in hurry and first informant was also in a perturbed position. The F.I.R. is not supposed to be an encyclopedia. After lodging the F.I.R. at 10.00 p.m. the inquest report was copied in the case diary thereafter the statement of constable Yad Ram has been recorded on 30.1.2007 and in the night of 30/31.1.2007 thereafter the statement of first informant Mustaq was recorded by the I.O. at 0.45 a.m. thereafter the statement of other persons were recorded. The time of recording the statement of the first informant u/s 161, Cr. P.C. has been mentioned in the case diary in Parcha No. 2, his statement was recorded at 0.45 a.m. on 31.1.2007 whereas the post mortem was done on 31.1.207 at 10.30 a.m., therefore, it cannot be said that on the basis of injuries found in post mortem examination a material improvement has been made in the statement of first informant Mustaq u/s 161, Cr. P.C., even in the site plan which was prepared on 31.1.2007 it has been specifically alleged that the first shot was discharged by the applicant thereafter two shots were discharged by two co-accused persons. There was a sufficient source of light. In any case it cannot be said that the deceased was murdered by some unknown persons due to enmity. The case of the applicant is distinguishable with the case of the other co-accused persons who have been released on bail by Sessions Court because the role of causing the injuries is not attributed in the F.I.R. whereas the specific role of causing the injury on the person of the deceased is attributed to the applicant in the F.I.R. In case the applicant is released on bail, he shall tamper with the evidence, therefore, he may not be released on bail.

Considering the facts, circumstances of this case, submissions made by learned Counsel for the applicant, learned A.G.A., learned Counsel for the complainant and from the perusal of the record it appears that the role of causing gun shot injury is assigned to the applicant in the F.I.R. and before post mortem of the deceased the statement of the first informant was recorded u/s 161, Cr. P.C. in which he has explained that two co-accused persons have also caused gun shot injury on the person of the deceased, the other gun shot injuries have been explained by the first informant in his statement recorded u/s 161, Cr. P.C. which was recorded in the night of 31/31.1.2007 at 0.45 a.m. whereas the post mortem examination was done at 10.30 a.m. on 31.1.2007. The case of the applicant is distinguishable with the case of the other co-accused persons who have been released on bail because the role of causing the injuries was not assigned to the co-accused persons and without expressing any opinion on the merits of the case the applicant is not entitled to be released on bail. The prayer for bail is refused.

Accordingly, this application is rejected.