Court No.20
Criminal Misc. Case No.8076(B) of 2009
Mohammad Bashir .......Applicant.
Versus
State of U.P. ...Opposite Party.
Hon'ble Raj Mani Chauhan, J.
Heard learned counsel for the applicant, learned A.G.A. for the
State.
The accused-applicant Mohammad Bashir is involved in Case
Crime No.355 of 2009, under Sections 323, 302 I.P.C. and 3/25 Arms
Act, from Police Station Bazar Shukul, District Sultanpur.
The submission of learned counsel for the applicant is that as per
version of the first information report accused-applicant Mohammad
Bashir and co-accused Miraj were armed with lathi. Co-accused Mejan
@ Anish was armed with Tamancha. On the exhortation of co-accused
Naseeb @ Pappu, accused Mejan @ Anish opened fire on the Khalil
Ahmad the husband of the complainant, who died on the spot. The
accused are said to have caused injuries to the complainant Tahrun
Nisha, Nafees, Hina and Safeeq with lathi. As per post mortem
examination report of the deceased it appears that the deceased had
sustained three firearm injuries and one contusion, which could be
caused by lathi. In this way the deceased had sustained only one lathi
injury. It has not been established by the prosecution, who out of two
accused armed with lathi had caused injuries to the deceased.
Moreover, this injury was not fatal to the deceased; rather deceased
had died on account of the firearm injuries. The injuries sustained by
other injured i.e. complainant, Nafees, Hina and Safeeq are simple in
nature. Co-accused Naseeb, whose role was of exhortation has already
been ordered to be released on bail. Therefore, present accused also
deserves to be released on bail.
Learned A.G.A assisted by the learned counsel for the
complainant opposed the bail application and argued that the accused
has made an amendment to the affidavit, which is not permissible in
the eye of law. The affidavit filed by the accused-applicant will not be
treated as affidavit, therefore, the bail application is liable to be
rejected in view of Rule-2 of Chapter -XVIII of the Allahabad High
Court Rules, 1952. The leaned counsel for the complainant argued that
the complainant, Nafees, Hina and Safeeq had sustained lathi injuries.
Accused were armed with lathi at the time of occurrence, they had
used lathi to cause injuries to the complainant, Nafees, Hina and
Safeeq, therefore, his participation prima-facie is established. As per
post mortem examination report, the cause of death of the deceased
was due to ante mortem injuries and not the firearm injuries. Keeping
in view the nature of offence accused does not deserve to be released
on bail.
Considered the submissions of the learned counsel for the
applicant and the learned Additional Government Advocate. The
injuries sustained by the injured/complainant, Nafees, Hina and Safeeq
are simple in nature. The accused-applicant Mohammad Bashir and
Miraj have been show armed with lathi at the time of occurrence. From
a perusal of the post mortem examination report of the deceased it
appears that he had sustained three firearm injuries and one contusion.
Keeping in view the totality of the facts and circumstances of the case
as well as the role assigned by the complainant to the accused-
applicant, without expressing any opinion on the merits of the case,
applicant may be released on bail.
Let applicant Mohammad Bashir be released on bail in aforesaid
case crime number on his furnishing a personal bond with two sureties
each in the like amount to the satisfaction of the court concerned.
18.01.2010.
Prajapati/-