BINDRA PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) - Heard learned Counsel for the applicant, learned A.G.A.

(2.) I have perused the first information report, post-mortem examination report as well as the bail rejection order passed by learned Sessions Judge. The post-mortem examination report of the deceased is indicative of use of some sharp edged weapons as well as firearms. Four injuries of fire-arm are present on his person apart from a number of incised injuries. The fact still remains that the informant claimed that the deceased, her son, was an Advocate and was present at the Barber's shop for shaving. While he was present there, these accused persons arrived there and started belabouring. According to the allegations she was attracted to the spot when she was in the middle of the entire route from her house to the above shop by the gun-shot reports. She ran to the scene of occurrence and witnessed that her son was being assaulted with Banka holding accused. There is no mention that shooting was restored to after her arrival at the scene of occurrence. There are three eye-witnesses apart from her nominated in the F.I.R. All of them are Advocates and each one of them belongs to different localities or villages. It is contended that the presence of the mother or these Advocates was improbable on the scenario at the relevant time. Apart from these facts it is also contended vehemently that the applicant is 70 years of age and had suffered fracture of the right shoulder, therefore, he cannot use the fire-arm with the injured shoulder without damaging it further. Thus, in the nutshell a picture is being depicted that the applicant cannot use any weapon in the incident thereby implication of the applicant is challenged amongst the assailants.

(3.) Supplementary affidavit wherein the allegation about his age are made and the fact of broken shoulder was also adverted to was given notice to the State on 29th July, 2004. Learned A.G.A. wants time to rebut the allegations. In my opinion, more than sufficient time has already been enjoyed by learned A.G.A. It would be travesty of justice to permit him any further time for their own laxity. This fact of his age being 70 years was also ignoring the above mentioned facts set aside the order dated 16.3.2002 passed by learned Chief Judicial Magistrate, District Kheri. Learned Sessions Judge scrutinised the allegation and assess the truthfulness of the allegations for which he was not legally permitted and in compliance of the order dated 16.3.2002 passed by learned Chief Judicial Magistrate the F.I.R. has come into existence, so it was not proper for the learned Sessions Judges to interfere in order dated 16.3.2002 because that order was exhausted and the F.I.R. has come into existence in which the investigation was going on.