OM PRAKASH Vs. STATE OF U.P.

JUDGEMENT

(1.) PRAYER for bail in this bail application under Section 439 of the Code of Criminal Procedure (in short 'the Cr.P.C.'), has been made on behalf of applicant Om Prakash S/o Ram Chandra, who is facing trial in S.T. No. 41 of 2008 arising out of Case Crime No. 662 of 2007, under Sections 147, 148, 149, 302, I.P.C. and Section 3(2)(v), S.C./S.T. Act, P.S. Thana Bhawan, district Muzaffarnagar. The said session trial is pending in the court of Additional Sessions Court No. 2, Muzaffarnagar.

(2.) AN F.I.R. was lodged on 9.9.2007 at 9.15 p.m. by Surata, S/o Bhaggu at P.S. Thana Bhawan, where a case under Sections 147, 148, 149 and 302, I.P.C. and Section 3(2)(v), S.C./S.T. Act was registered against 1. Om Prakash (applicant herein), 2. Shrawan, 3. Ajay, 4. Arvind, and 5. Anand. The allegations made in the F.I.R., in brief, are that on 9.9.2007 at about 7.00 p.m. Rajan (hereinafter to be referred as deceased) son of the complainant Surata received a telephone call of Om Prakash, who called him to village Manti Hasanpur to carry Moni. The deceased had married Moni through court marriage. On receiving telephone call the deceased went away to village Manti Hasanpur to carry Moni. When the deceased did not come back, the complainant Surata alongwith Rameswar, Subhash, Aman and Ghaseetu went to village Manti Hasanpur in search of the deceased. When they reached village Manti Hasanpur, they saw that the accused Shrawan, Ajay, Arvind and Anand, all sons of Kashmira were causing marpeet with Rajan (deceased) by means of saria, Balkatti, chain, tabal and daranti etc. At the same time, the accused Om Prakash fired on Rajan by country made pistol, due to which, he sustained injuries and died on the spot. This incident is said to have occurred at about 8.30 p.m.

(3.) THE first and foremost submission made by learned Counsel for the applicant was that the incident of committing the murder of deceased Rajan had taken place in the night and since there was no source of light at the time of alleged incident, hence there was no occasion for the witnesses to identify the assailants. It was also submitted in this context that due to previous enmity of kidnapping the daughter of applicant Om Prakash by the deceased, false F.I.R. was lodged by the complainant against the accused persons.