- (1.)SHIV Shanker, J. This is the first bail application moved on behalf of applicant Yashpal, son of later Ziley Singh in case crime No. 188 of 2006, under Sections 147, 148, 149, 302, 504 I. P. C. , Police Station Phugana, District Muzaffar Nagar.
(2.)HEARD learned senior Counsel Sri Satish Trivedi for the applicant and learned A. G. A. and learned Counsel for complainant as well as perused the record.
Learned Counsel for the applicant has submitted that the informant Kanhai has stated the motive only against the accused Parmendra. Rajpal Singh, Garaj Singh both deceased, witness Bablu and informant arrayed as accused persons in murder of Devendra brother of Parmendra and on the date of incident they were returning and on the way in Jungle where the incident did take place, but neither in the F. I. R. nor in his statement any motive has been shown against the applicant and since the deceased persons, and witnesses Kanhai and Bablu having bitter most enmity between accused Parmendra Singh and Ravindra Singh and only on account of family of Parmendra Singh and being witness against the informant and deceased Rajpal and Garaj Singh in the murder case of Devendra, the applicant has been falsely implicated in the case. Informant Kanhai and Bablu were on equally footing with the deceased on question of enmity, but both the witnesses have been left unhurt. Therefore their presence is doubtful at the time of incident in the night in Jungle of Doongar as residential houses of deceased and informant were more than 2 kilometers away from the place of incident. Anti-mortem injuries also not in conformity with the accused and weapons, and clearly belies the recovery of 12 bore empty cartridges, some fire-arm injuries are rifle shots on the persons of deceased. It is further contended that recovery of dead-bodies of deceased from place 'a' 'b' and 'c' clearly negate the manner of assault, presence of the informant and Bablu. When Kanhai and Bablu witnesses were present at the place of incident, they would not have been spared by the assailants. The manner in which the dead-bodies were found clearly indicates that killers had some strong or special grudge against the deceased and informant and also Bablu.

It is further contended that disposal of shot upon the deceased Dharam Pal Singh which is 15 x 6 cm could not be caused by a gun from a distance of less than one feet as reveals from the place 'd' and 'e' shown in the sites plan as stated by the informant to the Investigating Officer with regard to assault made by the accused. It is further submitted that the incident had taken place in complete dark hours. On the date of incident, the sunset time was 5. 11 p. m. and the incident is occurred at about 7. 30 p. m. i. e. more than 2 hours after sun set. Secondly 4th day of Krishna Paksha was going on, therefore, in absence of proper source of light it was not possible for informant to see the accused in improper light of car. As such their presence with the deceased do not inspire confidence. Thirdly it is submitted that the informant has stated that as and when the killers stopped the vehicle and exhorted and opened fire he ran away towards the field of sugar cane, therefore, in such a case witnesses could not see the actual assault and recognize the actual culprits. It is further submitted that the statement of Bablu witness was recorded by the Investigating Officer after two days which itself has, to be viewed shaky, weak, and seems to be the result of anti-timed proceedings due to non-availability of independent witness. It was impossible to them to see the faces of assailants when they committed the murder of the three persons. No where they have said that they have made cries when they ran towards the sugar cane field. It is further submitted that in the F. I. R. reveals that he escaped and reached the police station straight way from the place of occurrence to lodge the F. I. R. without informing to any village people or family member regarding three murders. Now the question again arise whether he had empty papers and whether he could have been written a report in the dark hours and could have gone alone to the police station for lodging the F. I. R. and village people how gathered at the spot. This circumstance appearing in the case, the possibility of false implication of accused persons by Kanhai under suspicion or due to animosity cannot be ruled out. The first informant had sufficient time to have consultation with the police and after manipulation lodged the same in the next morning. In support of this contention, such as late dispatch of special report, of chick F. I. R. to the Magistrate, late arrival of dead-bodies in the mortuary for post-mortem examination, over writing in site plan and other discrepancies in the papers lost its corroborative value and presence of Kanhai and Bablu. It is further submitted that no specific role has been assigned against the present applicant, only general role has been assigned to all accused persons. It is further submitted that the applicant has never been clumped in any crime while he has attained the old age i. e. more than 57 years and for the first time he has been implicated in the present case only on account of witness as arrayed against the deceased Rajpal, Garaj Singh, Kanhai and Bablu in case crime No. 73 of 2004, under Sections 302,506 I. P. C. , P. S. Phugana, District Muzaffar Nagar. It is a cool blooded murder and no one has seen the incident. It is further submitted that being old and patient of Asthama, he could not have taken part in the alleged occurrence. It is further submitted that prior to alleged commission of crime, the applicant was admitted in the Hospital commonly known as Ashutosh. Speciality Hospital situated at Sardhana Road Kanker Khera Meerut which is 75 kilometers from his village. He was under treatment of the doctor, being old patient of Bronchnl Ashthama, even in jail he is ill and in view of reference of Session Court, the doctor of Jail Muzaffar Nagar has reported on 23-1- 2007, the same disease and reported that the applicant is continuously admitted in Jail Hospital since 4- 12-2006, therefore, without proper treatment he may loss his life inside the jail likewise as his elder brother Mahendra died in jail on the same illness. It is further submitted that this is the incident of jungle and alleged eye-witnesses are chance witnesses. Therefore, evidence cannot be given by him from the jail in murder case of Devendra. It is further submitted that no blackening and tattooing was found on the dead-body of deceased. Therefore fire-arm injuries were caused from long distance not close range.

(3.)ON the other hand it is urged that it is a case of triple murder of direct evidence, wherein the appellant is also named in the F. I. R. which was lodged promptly. Version of prosecution is supported with the post-mortem report of the deceased. Motive is also previous enmity. The first informant Kanhai and Bablu are eye-witnesses who supported the prosecution story in their statement.
This incident had taken place on 9-11-2006 at 7. 30 p. m. while the F. I. R. was lodged by Kanhai, son of Dharampal Singh on 9-11- 2006 at 20. 50 p. m. after covering distance of 3 kilometers from the place of occurrence, wherein the present applicant and four other co-accused persons namely Parmendra, Ravindra Omveer and Mahendra have been nominated in this case. Therefore, it was lodged promptly within 80 minutes after the occurrence. Therefore, there is no delay in lodging the F. I. R. and the same was lodged promptly against the present applicant also. There is no force in the submissions made by learned Counsel appearing on behalf of applicant that it was lodged ante-timed because inquest reports regarding three dead-bodies of deceased persons were prepared after lodging the F. I. R. on 9-11-2006 from 9. 30 p. m. to 11. 55 p. m. wherein crime number and Section have been mentioned. There is no overwriting in Section and crime number etc. in all the inquest reports. Motive of this is that the brother of co- accused Parmendra was allegedly murdered on 12-5-2006 at about 7. 40 a. m. , wherein Ravindra lodged the F. I. R. against Rajpal, Garaj Singh deceased, informant Kanhai, Bablu eye-witness. Therefore this murder case was pending at the time of incident and Kanhai the first informant and his father Dharampal, his brother Garaj Singh and his Tau Rajpal Singh and his son Bablu were returning from the Court after attending the date in murder case of Devendra. As soon as they reached in the jungle in between the way of Phugana, three persons namely Dharam Pal Singh, Rajpal Singh and Garaj Singh were shot dead due to taking revenge of murder of Devendra, brother of co-accused Parmendra. Applicant is witness in murder of Devendra and he was also having same interest alongwith other co- accused for the committing the crime. Therefore, motive is also established against the present applicant.