KAMLESH VERMA Vs. STATE OF U P

JUDGEMENT

(1.) SUPPLEMENTARY counter affidavit filed today is taken on record. Heard the learned counsel for the applicant, learned A.G.A. and perused record. The applicant is involved in Case Crime No.474 of 2008, under Section 302 I.P.C., Police Station Mohammadpur Khala, District Barabanki. As against the genuineness of the prosecution case and proposed evidence it is submitted that he is not named in the F.I.R. The attention of the Court is also drawn towards the prosecution story according to which the deceased was fired at while he was going on his own motorcycle on 15.09.2008 at about 8.00 p.m. The report of this case has been lodged by his real brother Rajesh Kumar. It comes out from recovery memo that as the applicant was not named in the F.I.R. in a general search made by the police of the wanted criminals the applicant was fortunately arrested and from his possession a country made pistol was recovered on 22.10.2008. It is said that on that occasion besides confessing about having illegal fire arm the accused-applicant also confessed to have killed the deceased Sarvesh because he was having illicit relation with the applicant's sister Vimla. Then after a gap of about more than one month and one week i.e. on 02.12.2008 two witnesses namely Ramesh and Vijay came forward to claim that they have witnessed the occurrence. They also told that they could not come out earlier because of the fear of the accused-applicant. At this stage, it is pointed out that the applicant-accused has no criminal history to his credit. Both the aforesaid witnesses also told that when the accused-applicant was arrested then only they could muster courage and come forward to tell about the incident. But from the side of the applicant it is pointed out that the applicant was arrested on 22.10.2008 and had no criminal history to his credit. Therefore this explanation cannot be believed because even after his arrest they came out after a long gap of about more than a month. Further it is submitted that the prosecution story is patently unbelievable because out of the aforesaid two witnesses Vijay happens to be the real father-in-law of the deceased and also happens to be one of the witnesses of the alleged recovery memo which was prepared in respect of the motorcycle on which the deceased was riding and also one empty cartridge of the 315 bore. But he did not tell anything to the police at that time or subsequently thereafter. Not only this he even did not tell it to the brother of the deceased i.e. the first informant who filed FIR against unknown persons. He even did not go to his daughter, the widow of the deceased to atleast console her. It is said that at least such evidence has not been collected. It is also contended on behalf of the applicant that according to the prosecution story the deceased was riding on a motorcycle when he was fired at and the assailants was on foot. In that situation the fire arm injury which has been found in the post mortem report could not have been caused which is downwards. Moreover blackening and scorching have also been found which shows that it was a blind murder and the fire was made from a very close range while the deceased was static and not moving on a motorcycle. It is also claimed that there is no criminal history against him. He is said to be in jail from 22.10.2008 i.e. for the last more than seven months. The bail is however, opposed by learned A.G.A. The points pertaining to nature of accusation, danger of accused absconding or fleeing if released on bail, character, behaviour and position of the accused, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered. In view of the aforesaid facts and circumstances and without entering into the merits of the case and particularly having regard to the fact that the applicant is not named in the F.I.R. and also the points of discussion mentioned hereinabove, I find it to be a fit case for granting bail. Let the applicant (Kamlesh Verma) be enlarged on bail on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the Magistrate/court concerned.