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Rakesh Kumar And Another v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 15980 of 2006 [2006] RD-AH 13527 (17 August 2006)


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 Court No. 46

Crl  Misc    Bail Application No. 15980 of 2006

Rakesh Kumar and another...Vs....... State of U.P.


Hon'ble Ravindra Singh, J.

This bail application has been  filed by the applicants Rakesh Kumar and Dholi alias Dholu alias Jogendra with  a prayer that he may be released on bail in case crime no. 5 of 2006, under Sections 302 and 506  I.P.C. , P.S. Sector 49, Noida,   district Gautam Budh Nagar.

The prosecution story, in brief, is that the F.I.R. of this case has been lodged by one Lakhan on 15.1.2006 at 6.45 a.m. in respect of the incident which had occurred  in the night of 14/15.1.2006. The F.I.R. was lodged against the applicants alleging therein that in the night of 14/15.1.2006 the first informant and his brother deceased Satish were going to their village on a motorcycle after closing their shop. When they  reached near the   Bahuguna Apartment at about 11.30 p.m. they were stopped by the applicants and the first informant was asked by them to leave that place because they had to talk with the deceased. The first informant left that place relying upon the applicants. As soon as he reached to his house, two persons namely Chandar and Mahendra gave an information that his brother Satish was being beaten by the applicants  and one unknown person by using fatta (wooden piece) and bottles . The first informant made hue and cry but a threat of his life by exhorting that the deceased has been murdered he shall also be murdered, was extended by the miscreants and they ran away from the place of occurrence. According to post mortem examination report the deceased has received 13 injuries, in which injuries no. 1 to 10 are lacerated wounds and injuries no. 11 to 13 are contused abrasions.

Heard Sri Manish Tiwari and Sri A.K. Mishra  learned counsel for the applicant , learned A.G.A. for the State of U.P. and Sri Ravindra Nath Rai and Sri Ashok Kumar Rai learned counsel for the complainant.

It is contended by the learned counsel for the applicant that : -

(i)the presence of the first informant and other witnesses at the alleged place of occurrence was highly doubtful. The deceased was murdered at a lonely place by some unknown persons and in the morning the dead body was found, thereafter, the F.I.R. was lodged.

(ii)The distance of the house of the first informant from the place of occurrence was 7 kms. In case the witnesses Chandar and Mahendra had seen the alleged occurrence and went to the house of first informant to give the information and on their information the first informant came at the place of occurrence , it was not possible after such a long period the applicants and other co-accused were continuously beating to the deceased and waiting for the  arrival of the first informant and other witnesses.

(iii)The I.O. has recorded the statement of Pappu. He did not disclose any material facts to the I.O. Thereafter, the mukhvir khas was interrogated  and the I.O. brought the name of the applicants into light on the basis of doubt and suspicion, because they were involved  in some criminal cases, but subsequently, Pappu has been made an eye witness. He stated that the applicants were causing injuries on the person of the deceased by using Patti, thereafter, the statement of Chandar and Mahendra were recorded. They also stated that the injuries were caused by the applicants on the person of the deceased by patta blows.

(iv)The prosecution story is not corroborated by the medical evidence, because the nature of the injuries shows that such injuries may not be caused by patti blows.

(v)The statements of the witnesses Chandar and Mahendra were recorded on 20.1.2006. There is delay in recording the statements of the witnesses and there is no plausible explanation, which shows that they have seen the alleged occurrence.

(vi)There are material contradictions in the statements of the witnesses and the F.I.R., because in the F.I.R. it was alleged that the injuries were caused by patta, bottle and hathiyar, but in the statements of  witnesses Chandar and Mahendra  the injures were caused by patta and frame, but they have not disclosed the name of Pappu as a witness and a new weapon frame has been introduced.

(vii)There are some insertion and interpolation in the case diary which shows that the F.I.R. and other proceedings of the investigation were ante dated.

(viii)The recovery of frame and patta shown by the I.O. jointly  from an open place which was easily accessible to all is not in accordance with the provisions of Section 27 of the Indian Evidence Act. The recovery was planted and the recovery of the blood stained cloths was also planted by the I.O. and no chemical examination has been done. All the aforesaid cloths, frame and patta were not chemically examined and without doing the same the charge sheet has been submitted.

(ix)The applicants have been falsely implicated and the alleged evidence against them is not credible, therefore, they may be released on bail.

In reply of the above contention the learned A.G.A. and  learned counsel for the complainant submit that the applicants have been named in the F.I.R. The first informant was also in the company of the deceased, but the deceased was stopped by the applicants and the first informant was asked to go to his house. The first informant received information who came at the place of occurrence. The statements of the witnesses Chandar and Mahendra were also promptly recorded without unreasonable delay and at the pointing out of the applicant the blood stained patti and frame as well as blood stained cloths were recovered. The prosecution story is fully corroborated by the medical evidence because all the injuries received by the deceased were caused by hard and blunt object. In case the applicants are released on bail they may tamper with the evidence also, therefore, the applicants may not be released on bail.

After considering the facts and circumstances of the case, submissions made by the learned counsel for the applicants, learned A.G.A and learned counsel for the complainant and considering the nature of the offence and its gravity and without expressing any opinion on the merits of the case the applicants are not entitled for bail, therefore, the prayer for bail is refused.

Accordingly, the bail application is rejected.

Dated: 17.8.2006.



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