Hon. Ashwani Kumar Singh, J.
Heard learned counsel for the appellants and learned A.G.A. for the State of U.P.
The appellants Rafiq @ Munda, Rais @ Maulana and Shailendra Kumar @ Pappu have preferred the present appeal against the judgement and order dated 09.10.2009 passed by learned Addl. Sessions Judge/ FTC-XI, Pragapgarh in S.T. No. 96 of 2002 connected with S.T. No. 386 of 2005 and S.T. No. 396 of 2005 whereby all the appellants have been convicted for the offence punishable under section 302/34 IPC. The appellants Shailendra Kumar @ Pappu has been further convicted for the offence punishable under sections 394, 411 IPC and 25 Arms Act. The appellant Rafiq @ Munda has also been further convicted for the offence punishable under section 25 Arms Act, all the appellants have sought the bail in the present appeal.
From the perusal of the record and impugned judgement it reveals that the FIR of this case has been lodged by Enamul Haq, P.W. 1 on 29.6.2001 at 5.45 P.M. in respect of the incident allegedly occurred on 29.6.2001 at about 5.00 P.M. alleging therein that the first informant and his uncle Mohd. Alam (deceased) were going on a scooter to their home. The appellants Rafiq @ Munda and Rais @ Maulana along with their unknown associate were sitting at a shop near old railway crossing, Kunda, they came out and exhorted to commit the murder of the deceased and first informant. The appellant Rafiq @ Munda was armed with SBBL gun, appellant Rais @ Maulana was armed with rifle and their unknown associate was armed with country made pistol. The first informant and deceased started running but the uncle of the first informant namely Mohd. Alam was shot dead by them. The first informant made hue and cry, the nearby shops were closed and panic was created. In the meantime the younger uncle of the first informant namely Didadur Haq came to the place of the incident. He also saw the miscreants in a running condition. The accused persons taken away the license revolver of the deceased Mohd. Alam from the place of the incident. According to the post mortem examination report the deceased has sustained nine ante mortem injuries, in which injuries No. 1,3,6 and 7 were fire arms wounds of entry, injuries No. 2.4 and 8 were fire arm wounds of exit and injury No. 9 was abrasion. From the place of the incident two empty cartridges of 12 bore and one empty cartridge of 315 bore were recovered by the I.O. On 29.6.2001 the scooter on which the first informant and the deceased were going was also recovered from the place of the incident on 29.6.2001. One half gun of 12 bore was recovered at the pointing out of the appellant Rafiq @ Munda from the bushes near the bridge of river on 27.7.2001 and a country made pistol was recovered at the pointing out of the appellant Shailendra Kumar @ Pappu Yadav from the bushes of sarpat and licensee revolver of the deceased was recovered at the pointing out of the appellant Shailendra Kumar @ Pappu Yadav on 27.7.2001. According to the report of the public analyst one of the empty cartridge of the 12 bore mentioned as EC-2 was fired from the country made pistol recovered at the pointing out of the appellant Shailendra Kumar @ Pappu. The appellant Shailendra Kumar @ Pappu is not named in the FIR, his name came to the light during investigation. In support of the prosecution version eight witnesses have been examined, the statements of the appellants have been recorded under section 313 Cr.P.C. and from the side of the defence D.W. 1 Mahangu Lal has been examined. The FIR has been promptly lodged. The deceased has sustained injury by fire arm. P.W. 1 and P.W. 2 have been examined as eye witnesses. The appellant Shailendra Kumar @ Pappu is not named in the FIR but during investigation at his pointing out the licensee revolver of the deceased has been recovered and at his pointing out one country made pistol of 12 bore used in commission of the alleged offence has also been recovered and according to the report of public analyst one of the empty cartridge of the 12 bore recovered from the place of the incident was fired by the country made pistol recovered at the pointing out of the appellant Shailendra Kumar @ Pappu. In such circumstances, all the appellants are not entitled for bail, their prayer for bail is refused.
Dt: 23.09.2014 RPD/