Hon'ble Anil Kumar Agarwal,J.
Heard the learned counsel for the appellants, leaned A.G.A. for the State of U.P. and Sri Salman Ahamd and Sri Shalil Makrani, learned counsel for the complainant and perused the lower court record.
The facts of the case in brief are that the F.I.R. has been lodged on 4.2.1998 at 7.30 p.m. in respect of the incident allegedly occurred on 4.2.1998 at about 5.00 p.m., the F.I.R. has been lodged by P.W. 1 Mohd. Rizwan Khan, alleging therein that there was an enmity in between the family of the first informant and the accused Badruddin and Fakhruddin, Guddu, Anisuddin, Nasimulshan Khan,Ghaus Khan, on account of old enmity, on 4.2.1998 at about 4.00 p.m. when the deceased Mohd. Hanif Khan was going from his house toward the shop of Chhuddan Khan, all the accused persons namely Anisuddin, Shamshuddin, Chhota Khan, Mohd. Shan Khan, Nasim Gulshan Khan and Guddu armed with Banka and lathi, caused injury on the person of the deceased, in the meantime the co-accused Badruddin and Fakhruddin also discharged shot towards the deceased by their country made pistol, the first informant came to his rescue, he was also beaten by Banka and lathi, the mother Smt. Nawab Begun, sister Asmat Jahan and Noor Jahan also came in his rescue, they were also beaten by the accused persons, on shouting the witnesses came at the place of occurrence, the deceased Mohd. Hanif Khan in an injured condition and other injured persons were brought to the police station where the F.I.R. was lodged. In support of the prosecution version 12 witnesses have been examined. According to the medical examination report the injured Rizwan, has sustained nine injuries in which injury nos. 1,5 and 5 were lacerated wounds, injury nos.2,3 and 4 and 8, 9 were incised wounds, injury no.6 was abrasion, injury nos. 2,3,4,8 and 9 were caused by sharp edged weapon, whereas injury nos. 1,5 and 6 were caused by hard and blunt object. The injured Asmat Jahan has sustained three injuries in which injury nos. 1 and 2 were abraded swelling and injury no. 3 was complaint of pain. The injured Noor Jahan had sustained three injuries in which injury no. 1 was lacerated wound, injury nos. 2 was abraded swelling and injury no.3 was complaint of pain. All the injuries were caused by hard and blunt object.
According to the post mortem examination report the deceased Mohd. Hanif Khan had sustained 15 injuries in which injury nos. 1,2,5,6,10,11,12, and 13 were abrasion, injury nos. 3,4 and 15 were lacerated wound, injury nos. 7,8, and 9 were incised wound and injury nos. 14 was incised ear collated blood was found on the pinna. Injury nos. 7, 8 and 9 were caused by sharp edged weapon, rest of the injuries were caused by hard and blunt object.
In respect of the prosecution version 11 P.Ws. have been examined and 9 C.W. have been examined. From the side of the defence no person in defence has been examined. After considering the evidence adduced the appellant and other co-accused persons have been convicted by the trial court. It is contended by the learned counsel for the appellant that according to the prosecution version the alleged occurrence has taken place near the shop of Chhuddan Khan, but Chhuddan Khan has not been produced by the prosecution he has been summoned by the court as C.W.7. According to his statement he did not witness the alleged incident, after the commission of the alleged occurrence, he came to the place of occurrence and saw the deceased in a dead condition. In his presence nothing incriminating was recovered by the police, at the pointing out of the accused persons. The prosecution story is false, concocted and highly improbable. The F.I.R. of this case is ante timed. According to the inquest report, the deceased was killed by the firearm and Pharsa whereas in the F.I.R. the weapon mentioned are Banka and lathi and county made pistol, which shows that at the time of preparation of the inquest report, F.I.R. was not in existence.
It is further contended that no reliance can be placed on the testimony of the witnesses because it has been specifically alleged that accused Badruddin and Fakhruddin caused the injury by country made pistol but neither the deceased nor the injured persons had sustained any injury by firearm, which belies the whole prosecution story, in such a situation the appellant may be released on bail.
In reply to the above contention it is submitted by the learned A.G.A. and the learned counsel for the complainant the the prosecution has successfully proved its case beyond the shadow of doubt, therefore, the appellant may not be released on bail.
Considering the facts and circumstances of the case and submission made by the learned counsel for the appellants and the learned A.G.A. and from the perusal of the record it appears that the appellant Chhota Khan and Mohd. Shan Khan and allegedly caused injury by using lathi blow. According to the post mortem examination report of the deceased and the medical examination report of the allegedly the injured person it appears that they had sustained injury by hard and blunt object also, in such a situation, without expressing any opinion on the merits of the case, the appellants Chhota Khan and Mohd. Shan Khan and are not entitled for bail. Therefore, their bail application is refused.
Accordingly their bail application is rejected.
Dt. 2.2.2012 NA