RAM KESH Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the appellant and learned A.G.A. for the State of U.P.

(2.) The appellant Ram Kesh has preferred this appeal against the judgement and order dated 19.3.2013 passed by learned Addl. Sessions Judge, Court No. 1, Kanpur Dehat in S.T. No. 35 of 2011 whereby the appellant has been convicted for the offence punishable under sections 302/34, 295, 295-Ka, 379/511 IPC and he has been sentenced to undergo life imprisonment with a fine of Rs. 4,000/- under section 302/34 IPC, to undergo sentence of one year imprisonment in each offence punishable under sections 295, 295-Ka and 379.511 IPC. The present bail application has been moved therein with a prayer that he may be released on bail during pendency of this appeal.

(3.) It is contended by learned counsel for the appellant that the FIR of this case has been lodged by P.W. 1 Riyaz Khan at police station Musanagar on 5.10.2010 at 7.30 a.m. in respect of the incident allegedly occurred on 5.10.2010 at about 5.00 a.m. At the time of alleged incident the deceased was irrigating his field, the appellant and other co-accused namely Tanney and one unknown miscreant came there with intention to commit the theft and they started to collect the water pipe, it was objected by the deceased Ishlam Khan, then the miscreants caused injuries on his person by using lathi and bricks blows consequently he died instantaneously. The alleged incident was witnessed by P.W. 2 Ayub Khan and P.W. 3 Mahboob Khan, thereafter the accused persons tore the paper of a religious book to insult the religion and out raised the religious field of particular class. Consequently the peoples collected there, they blocked the Gajner Road. The presence of the witnesses at the place of the alleged incident was highly doubtful because according to the post mortem examination report the deceased has sustained six ante mortem injuries, the stomach of the deceased was containing 100 gram semi digested food. The small intestine and large intestine was having fickle matters and gases. It shows that the deceased was not killed as alleged by the prosecution at about 5.00 a.m. The alleged occurrence had taken place out side of the village Abadi, it appears that he was killed in the night hours by some unknown persons. There are material contradiction in the statements of the eye witnesses which belies their presence at the alleged place of the incident. In such circumstances, the appellant may be released on bail.