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2010 DIGILAW 1812 (ALL)

Abdul Baari v. State of U. P.

2010-05-27

ABDUL MATEEN, VIRENDRA KUMAR DIXIT

body2010
Hon'ble Virendra Kumar Dixit, J.:- Heard Shri Kunwar Mridual Rakesh, learned Senior Advocate, Shri Mohammad Mustafa Khan and Shri Rishad Murtaza, learned counsels appearing for the appellants, and the learned Additional Government Advocate. 2. Since the instant three appeals have been preferred against one and the same judgment passed in Sessions Trial No. 23 of 1998 (District Pratapgarh), as such, they are being taken up together for consideration of prayer for bail of the appellants. 3. The four appellants have been assigned role of inflicting lathi and danda injuries along with four other persons, who were later on declared juvenile and their trial had been separated. They had wielded blows on Mohar Ali, Nazim Ali, Abbas and Akhtar. Nazim Ali and Abbas succumbed to the injuries, while Akhtar Ali and Mohar Ali were in a critical condition. The appellants have been convicted under Sections 302/149 and 323/149 IPC and have been sentenced for maximum term of life imprisonment with fine stipulation. 4. We have gone through the judgment as well as record of lower court and also record pertaining to Sessions Trial No. 82 of 1998, which relates to case crime no. 321-A of 1994 cross case registered under Sections 147, 148, 323, 324, 504 and 506 IPC lodged at the same police station. 5. It comes out that at about 11 A.M. a mob gathered and on the trivial issue fight took place between two groups in which lathi and danda carried at the place of occurrence were used on each other leaving behind two persons dead and two persons injured on the side of complainant and two persons injured on the side of appellants, namely, Mustkeem and Mohd. Idrish. Argument advanced on behalf of the appellants is that the incident took place at spur of moment without there being pre-meditation and the case would not go beyond Section 304 IPC. The two deceased, who succumbed to the injuries, received only lathi and danda blows and it cannot be said that which of the appellants wielded blows either on injured persons or on the deceased. The cross FIR resulted into acquittal against which criminal revision has been preferred by one of the appellants vide Criminal Revision No. 246 of 2009, which is pending in this Court. 6. The cross FIR resulted into acquittal against which criminal revision has been preferred by one of the appellants vide Criminal Revision No. 246 of 2009, which is pending in this Court. 6. We have also gone through the postmortem report of the deceased as well as medical examination report of the injured persons and we find that the deceased and injured received lathi and danda injuries and none of them had received firearm injuries. Specific allegation of firing has been levelled against one of the accused-Subedar, who has already been directed to be released on bail by this Court vide its order dated 14.07.2009 passed in Criminal Appeal No. 1157 of 2009 as submitted by the learned counsel for the appellants. It is stated that the appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. It is also stated that Abdul Baari appellant of Criminal Appeal No. 1206 of 2009 is more than seventy years.It is further stated that the appeals will take a considerable period of time for reaching on their justiciable conclusion. Two judgments of the apex Court have been cited on behalf of the appellants i.e. Angana and another Vs. State of Rajasthan reported in (2009) 3 Supreme Court Cases 767 and Anil Ari Vs. State of West Bengal reported in (2009) 3 Supreme Court Cases (Cri) 1377 and on the basis of these laws prayer for bail has been pressed. Nevertheless, it cannot be said that if a person is more than seventy years of age, he should be released on bail. In a gruesome case of murder other relevant facts are also to be considered. 7. In the peculiar facts and circumstances of the case indicated above, we find it a fit case for bail. 8. Let appellants-Abdul Baari, Mohammad Mustafa, Kamar Ali alias Babbu and Ibrahim, convicts of the aforesaid sessions trial, be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate, Pratapgarh. 9. Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the appellants within one month from the date of their release on bail. 10. 9. Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the appellants within one month from the date of their release on bail. 10. Court below is directed to transmit to this Court photocopies of bonds and sureties filed by the appellants to be preserved in the record maintained here.