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OMVIR versus STATE OF U.P.

High Court of Judicature at Allahabad

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Omvir v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 4702 of 2006 [2006] RD-AH 10328 (25 May 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Criminal Misc Bail Application No. 4702 of 2006

Omvir...Vs...State of U.P.

.......

Hon'ble Ravindra Singh,J.          

          This application is filed by  applicant Omvir with a prayer that he may be released on bail in case crime no. 245 of 2005,  under Sections 365, 302/34  I.P.C., P.S. Khurja Nagar, District  Bulandshahar.

The prosecution story, in brief, is that in the present case the F.I.R. has been lodged by one Bhanu Pratap Singh,  on 26.6.2005 against the applicant under Sections 365/34 I.P.C., but subsequently, the case was converted under Section 302/34 and 365 I.P.C. It is alleged that on 26.6.2005 at about 6.30 a.m. Smt Santosh Devi the wife of the first informant along with her daughter Km. Rachna had gone to Bhuteshwar temple to offer the worship as usual. One maruti van was already parked at the gate of the temple, in which Ved Prakash and 4 other young men were sitting. The wife of the first informant  Smt Santosh Devi was forcefully dragged in the van and taken away. The alleged occurrence was witnessed by Km Shashi Goswami and Thakur Jaipal Singh and others. The witness Km. Shashi came to the house in weeping condition and narrated the whole story to the first informant. The applicant is named in the F.I.R. Prior to the alleged occurrence the deceased was abducted by the applicant and others, but she was recovered. Its case is pending. The search of the deceased was made by the first informant and others, but she could not be traced out, then the F.I.R. was lodged.

Heard Sri Ram Babu Sharma learned counsel for the applicant  and  learned A.G.A. for the state of U.P. and Sri Sanjay Srivastava learned counsel for the complainant.

         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 given by Km. Shashi.

(ii)The statement of the first informant was recorded under Section 161 Cr. P. C., in which he stated that 4 persons have abducted his wife.

(iii) The statement of the witness Km Shashi Goswami, Km. Rachna and Jaipal Singh were recorded by the I.O. under Section 161 Cr. P. C. on 12.7.2005 in which Km. Shashi and Km. Rachna did not disclose the name of the applicant and other co-accused persons, but witness Jaipal Singh disclosed the name of 3 accused persons..

(iv) On 21.7.2005 at village Nagal Kat,  P.S. Arniya district Bulandshahar an unidentified dead body was recovered by the police. No injury was seen on her person. The dead body was clothless lying in a canal, thereafter, 2nd statement of the first informant was recorded under Section 161 Cr. P. C. on 2.8.2005 and the case was converted under Section 302  I.P.C. In that statement the first informant disclosed the name of the witness Ashok, Durgpal and Amit who saw the applicant with the deceased.

(v)The statements of Amit and Durgpal were recorded under Section 161 Cr. P. C. by the I.O. on 2.8.2005. They disclosed the name of the real accused who committed the murder of the deceased as they were Satyendra Yadav, Suresh Yadav , Jitendra, Virendra and Kishan.

(vi) The prosecution story is not corroborated by post mortem examination report because there was one incised wound as anti mortem injury.

(vii) There was no credible material collected by the I.O. during the investigation to show the  involvement of the applicant. He has been falsely implicated  because he was earlier falsely implicated in a case also in which the statement of the prosecutrix was recorded under Section 164 Cr. P. C. who had not disclosed the name of the applicant as an accused, therefore, the applicant may  be released on bail.

It is opposed by the learned A.G.A. and the learned counsel for the complainant by submitting that the applicant is named in the F.I.R. along with his associate and abducted the deceased from a temple. The deceased was taken by them forcefully. Subsequently, she was murdered and her dead body was recovered and the applicant was having a strong motive to commit the alleged offence because prior to alleged offence the deceased was abducted by the applicant and other co-accused persons, Its F.I.R. was lodged against them in case crime no. 484 of 2000 under Section 365, 366 and 376 I.P.C. and the case was pending, in which the deceased was star witness. To wipe out the evidence the deceased was kidnapped and murdered by the applicant and other co-accused persons. The delay in recording the statements of the witnesses is not fatal for the prosecution because in such abduction cases the delay naturally occurs. In case the applicant is released on bail he shall not permit any witness to give the evidence against him  the statement of the witnesses  In such circumstances the applicant may not be released on bail.

           Considering the facts and circumstances of the case and the submissions made by the learned counsel for the applicant and learned A.G.A. and learned counsel for the complainant and specially considering the fact that the applicant was accused in a case of abduction and rape in which the deceased was victim. Its F.I.R. was lodged against the applicant and other co-accused persons in case crime no. 484 of 2000, P.S. Khurja Shahar, district Bulandshahar, under Sections 365, 366, 376 I.P.C. and that case is pending and the deceased was a star witness of that  case who has been abducted by the applicant and subsequently, murdered, therefore without expressing any opinion on the merits of the case the applicant is not entitled for bail, so, the prayer for bail is refused.              

           According this bail application is rejected.

Dated: 25 .5.2006

Rcv

         


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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