MANOJ Vs. STATE OF U P

JUDGEMENT

(1.) THIS appli ­cation has been filed by the applicant Ma -noj with a prayer that he may be released on bail in Case Crime No. 1416 of 2007 un ­der sections 302, 376 and 511 I.P.C. and section 3(2) 5 of S.C./S.T. Act P.S. Amroha Dehat, District J.P. Nagar.

(2.) THE facts in brief are that the F.I.R. of this case has been lodged by Mahendra Singh on 24.9.2007 at about 1.30 p.m. in respect of the incident which had occurred on 24.9.2007 at 1.00 a.m., the distance of the police station was about 8 km from the al ­leged place of occurrence. The applicant and three other co -accused persons are named in the F.I.R. It is alleged that on 24.9.2007 at 11.00 a.m. the deceased Smt. Jai Kali had gone to agricultural field to take the fodder, when she was cutting the fod ­der, the applicant and other persons committed rape with her, on her shrieks Hemraj and Brij Pal came at the place of occurrence, they saw that the deceased was murdered by way of strangulation. Accord ­ing to the Post -Mortem Examination Re ­port, the deceased has sustained two inju ­ries in which injury No. 1 was ligature mark around the neck and injury No. 2 was abrasion. The cause of death was due to ante -mortem strangulation. The applicant applied for bail before the learned Sessions Judge, J.P. Nagar who rejected the same on 4.1.2008.

(3.) IT is contended by the learned Counsel for the applicant that the first in ­formant is not an eye -witness even accord ­ing to the F.I.R. the alleged witness Hem Raj and Brij Pal have seen the alleged inci ­dent. The first informant is not allegedly the eye -witness. This incident has been witnesses by Hem Raj and Brij Pal, who were present at the alleged place of occur ­rence, their statements were recorded on 23.10.2003 whereas the alleged incident has taken place on 24.9.2007 and the prosecu ­tion story is not corroborated by the Post -Mortem Examination Report. There was no injury to show that the rape was committed with the deceased, this story is belied by the report of the Pathologist also as no spermatozoa was found in the vaginal smear and there is no evidence to show that the deceased was subjected to rape and thereafter she was killed. The applicant is innocent, he has been falsely implicated only on account of ill will of the first infor ­mant. The applicant is not having any criminal antecedent.