SHARAFAT AND ANOTHER Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri V.M. Zaidi, Senior Advocate assisted by Sri Samiullah Khan, learned counsel for the appellants Sharafat and Shahzad, Sri N.I. Jafri, learned counsel for the appellants Abulas and Nazakat, learned A.G.A. for the State of U.P. and perused the lower court record.

(2.) The appellants Sharafat and Shahzad have preferred the Criminal Appeal No. 3646 of 2012, the appellant Abulas and Nazakat have preferred the Criminal Appeal No. 1271 of 2013 against the impugned judgement and order dated 16.8.2012 passed by learned Addl. Sessions Judge, Court No. 12, Muzaffarnagar in S.T. No. 148 of 2005 whereby the appellants have been convicted for the offence punishable under sections 302/149, 148, 201, 436 IPC. The appellants have moved their bail applications separately in their respective appeal with a prayer that they may be released on bail during the pendency of their appeals, therefore, both the bail applications are being disposed of by a common order.

(3.) Having heard learned counsel for the appellants, learned A.G.A. for the State of U.P. and from the perusal of the lower court record, it reveals that the FIR of this case has been lodged by P.W. 1 Smt. Saira on 19.3.2004 at 1.35 P.M. in respect of the incident allegedly occurred in the morning of 19.3.2004 in which all the appellants are named as accused, alleging therein that she along with her father Rafiq having a hut in Khadar Ganga of Jalalpur, in the morning of 19.3.2004 the appellants came there and called the deceased Rafiq, he was caught hold and pushed into the hut and thereafter the hut was sat on fire, consequently the hut was burnt and Rafiq died due to burn injuries. In respect of the same incident an application was given by one Jamil to the Officer Incharge of P.S. Kakrauli alleging therein that the appellants and other co-accused namely Nafis, Islam, Farman and Moh Singh came at the place of the incident, they were having the enmity with him and his family members because about 18 months prior the alleged incident his brother Sayeed was murdered by Islam and his associates, its case was registered against him, due to this enmity at about 5.15 A.M. appellants and four other co-accused persons armed with gun, country made pistols came at the place of the incident, they wanted to commit the murder but he successfully fled away, they committed the murder of his son Javed aged about 14 years and his cousin Rafiq and they were thrown into the hut and hut was sat on fire, consequently both the deceased burnt badly and died. Its information was given by Smt. Saira also. The application given by Jamil, P.W. 2 was also made a part of investigation. According to the post mortem examination report both the dead bodies were badly burnt. In respect of the prosecution version P.W. 1 Smt. Saira and P.W. 2 Jamil have been examined. They disclosed the name of the appellants making the specific allegation. In the present case including four other co-accused namely Nafis, Islam, Farman and Moh Singh have been convicted by the trial court, but the other co-accused acquitted by another bench of this court because their names were not mentioned as accused in the FIR lodged by Smt. Saira. Names of the appellants as accused are clearly mentioned in the FIR lodged by Smt. Saira and on the same day application given by P.W. 2 Jamil. In such circumstances, the case of the appellants is distinguishable with the case of other co-accused persons. Therefore, the appellants are not entitled for bail at this stage. Their prayer for bail is refused.