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2009 DIGILAW 733 (ALL)

NAHAR SINGH v. STATE OF U P

2009-03-04

SHIV CHARAN SHARMA, VIJAY KUMAR VERMA

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( 1 ) LEARNED AGA has filed objection, which be taken on record. ( 2 ) HEARD learned counsel for the appellants, Sri Umesh Chandra Mishra and Sri P. K. Kashyap and learned AGA for the State on the prayer of bail of appellants Nahar Singh and Awdhesh, who have been convicted by the Additional Sessions Judge, Court No. 3, Farrukhabad vide judgment dated 11. 07. 2008 passed in S. T. No. 260 of 1998 (State vs. Nahar Singh and another), under section 302 IPC, P. S. Mohammadabad, District Farrukhabad. We have perused the trial court record and other materials including impugned judgement. ( 3 ) LEARNED counsel for the appellants argued that from the averment of the FIR, the only inference that can be drawn is that the case is of sudden provocation. It is alleged that the appellants and other accused persons demanded a sum of Rs. 10/- from Shamsuddin (P. W. 4) , driver of the vehicle, as tehbazari. On it, Rakesh deceased told that tehbazari can be collected only from the vehicles which carry the passengers. On it, the accused persons dragged Rakesh from the vehicle and thrashed him by legs and fists and they continued to thrash him till his death. ( 4 ) LEARNED counsel for the appellants also argued that according to the averments of the prosecution the bone of contention was only regarding collection of tehbazari. There was no pre-meditated plan to murder Rakesh. Learned counsel for the appellants further argued that these appellants did not drag the deceased and they had nothing to do with the dispute and they have falsely been implicated in this case. Learned counsel for the appellants also argued that complainant and other witnesses reside at a very far off distance about 30 kms. from the place of incident and it is not acceptable that the complainant and witnesses knew the names of the accused persons. Learned counsel for the appellants also argued that four accused persons thrashed the deceased, whereas according to the post-mortem report only 5 injuries of abrasions and contusions were sustained by the deceased, but only one injury was fatal, according to the opinion of the doctor. These accused persons were not armed with any lethal weapon and the prosecution story is highly doubtful. These accused persons were not armed with any lethal weapon and the prosecution story is highly doubtful. Learned counsel for the appellants also argued that all the witnesses including the complainant and other relations of the deceased, except P. W. 5 Reema Kumari, were declared hostile. Only on the statement of Reema Kumari P. W. 5, the learned trial court has convicted the appellants. It is also argued that the name of Reema Kumar is not mentioned in the FIR and she was also not interrogated by the investigating officer during investigation and her statement was not recorded under section 161 Cr. P. C. , hence reliance could not be placed on the statement of Reema Kumari P. W. 5. It is further argued that these accused persons were on bail during trial and they had not misused the bail. ( 5 ) LEARNED AGA opposed the prayer of bail and argued that the incident took place in a broad-day light, at about 10. 00 a. m. , on 5th November 1994. These appellants along with other accused persons thrashed Rakesh and caused his death by causing injuries to him by legs and fists. All the witnesses supported the prosecution story in their examination-in-chief, but they were cross examined after seeking time and during this period they were won over, due to which they turned hostile. Smt. Reema Kumari P. W. 5 and Rakshpal P. W. 3 were present on the spot and there is sufficient evidence against the appellant-accused to establish their complicity and active participation in the incident. ( 6 ) WE have considered all the facts and circumstances. We would not like to make any comment at this stage whether the case is covered under section 304 IPC. This matter shall be decided at the time of final disposal of case. ( 7 ) CONSIDERING all the facts and circumstances of the case, without expressing any opinion on merit, we are of the opinion that it is not a fit case for bail. Hence, the prayer for bail of appellants Nahar Singh and Awdhesh is declined and rejected accordingly. ( 8 ) HOWEVER, hearing of the appeal is expedited. Office is directed to prepare typed paper book and list the appeal for hearing in the month of May 2009. .