Court No. - 46 Case :- CRIMINAL APPEAL No. - 949 of 2009 Petitioner :- Raju @ Rajvir Respondent :- State Of U.P. Petitioner Counsel :- Apul Misra,P.N. Misra Respondent Counsel :- Govt. Advocate Hon'ble Sheo Kumar Singh,J.
Hon’ble Shyam Shankar Tiwari,J.
Heard Sri P. N. Mishra, learned Senior Advocate who
appeared to press the bail application on behalf of Raju alias
Rajvir in Criminal Appeal No. 949 of 2009 and Sri Maqsood
Ahmad, learned Advocate along with Sri Sunil Kumar,
learned Advocate who appeared to press the bail application
of Yamin son of Munshi Quraishi in Criminal Appeal No.
1012 of 2009. Learned Government advocate is also heard.
Both appellants are prosecuted and punished for an offence
punishable under Sections so mentioned in the judgment
and they are to serve out the sentence.
Submission is that it is a night incident and in fact both the
appellants are assigned the role of firing and in view of the
medical examination report and the Doctor’s statement
besides other factors, deceased appears to have received
single fire arm injury and thus the actual role/participation of
only one accused can be said and thus it is a case where
benefit is to be given to the appellant side.
It is further submitted that the witnesses who claims to have
seen the incident are said to be present at a distance of
about 100 meters and the offence is said to have committed
at a place where bulb light was there and thus in relation to a
single fire it cannot be possible that from such long distance
witnesses ran and reached the spot so as to enable them to
see the assailants while committing the actual offence so as
to pin point the accused/appellants who has committed the
offence.
Submission is that in respect to the ballistic examination
report and various other factors there is major variance in
the prosecution version/evidence and that has been noted
by the learned trial judge also and thus as both appellants
were on bail during the trial and as appeal is not so old and
that is to take long time in its disposal, appellants are entitled
for bail.
Learned Government side submits that it is a case where
there was sufficient light and eye witnesses saw the
appellants while committing the offence and thus on the
basis of technical submission after conviction the appellants
are not entitled to be released on bail.
After hearing the argument and on the notice of the facts
there is no dispute that incident is said to have taken place
in the night at about 11 P.M.. In view of medical examination
report, the argument about the single shot can be taken note
at this stage as both accused appellants are said to have
fired.
Presence of witnesses at a distance of about 100 meters
from where they rushed to the spot so as to enable them to
see the incident as argued is also to be taken care at this
interlocutory stage.
Variance in major factual aspect as has been noted by the
learned trial judge were placed by the learned Advocate
during the course of argument which has also been noticed
by this Court.
Both the appellants were on bail during the trial and they
claim that they have not misused the same.
Let the appellants Raju alias Rajvir and Yamin son of
Munshi Quraishi be enlarged on bail in S.T. No. 339 of 2005
(State Vs. Raju alias Rajvir) S.T. No. 338 of 2005 (State Vs.
Yamin and others) on their furnishing a personal bond and
two sureties each in the like amount to the satisfaction of the
court concerned. Realisation of fine to the extent of 50%
shall remain stayed. Balance amount of fine shall be
deposited forthwith. The release order shall be sent after
deposit of the balance amount of fine.
Order Date :- 6.1.2010
Sachdeva