ASIF Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned counsel for the applicant and learned A.G.A. as well as Sri Syed Irfan Ali, counsel for the first informant.

(2.) Submission of counsel for the applicant is that the incident in question is said to have taken place on 5.8.2013 at 6.30 A.M. in the morning while the F.I.R. of the case was lodged, admittedly to the prosecution, on 5.8.2013 at 8.20 P.M. in the night by the wife of the deceased. Further submission is that according to the version given out in the F.I.R., three accused persons including the applicant had committed the murder of the deceased by shooting him. There was absolutely no whisper about the use of any other arm in the F.I.R. It was also pointed out that the F.I.R. was lodged by the wife of the deceased on the basis of the information given to her by the two alleged eye witnesses of the case, who were none other than the brother of the deceased as well as brother of the first informant. The witness Kaimuddin is the brother of the deceased while the witness Amaruddin is the brother-in-law of the deceased (brother of the first informant). Submission is that the postmortem of the deceased took place in the day time and the postmortem report reveals two incised wounds on the body of the deceased. Further submission is that after discovery of the fact that the deceased had also received two incised wounds, the version was changed subsequently and during the course of the statements of the aforesaid witnesses, use of knife was also introduced and accordingly the applicant is said to have used knife along with other co-accused causing injuries to the deceased. The contention of the counsel is that this improvement is vital and goes to the root of the case, as it is obvious that the prosecution was trying to reconcile the contradiction between the oral version and the postmortem report. Counsel for the applicant has also drawn the attention of the Court to the fact that the deceased was brought in the hospital by one S.I. Shri Ram who was not in a position to disclose the identity of the deceased. Counsel has also drawn the attention of the Court to the Annexure-RA-1 filed along with rejoinder affidavit, which is the information furnished and sent from the hospital to the police station in which it was informed by the Medical Officer that an unknown dead body was brought by S.I. Shri Ram, who is approximately of 45 years in age. Counsel has further drawn the attention of the Court to the relevant G.D. entry entered in the police station on the basis of this information as G.D. entry No. 19 at 8.50 A.M. which is also Annexure-RA-I, according to which also, the aforesaid information sent by the Medical Officer about an unknown dead body having been brought by the S.I. was recorded in the police station. It was also submitted that if there is a grain of truth in the version of the first informant that two witnesses were actually the witnesses of the occurrence then keeping in view the close relationship of the aforesaid witnesses with the deceased it is impossible to imagine as to how and under what circumstances, they still did not inform the police and did not care even to take the dead body to the hospital. It was next submitted that if the brother of the deceased or real brother-in-law of the deceased had witnessed the occurrence then the F.I.R. of the occurrence could not have waited till 8.20 P.M. in the night. It was also submitted that it is only when the wife of the deceased arrived from Delhi that at that stage after a well thought out plan, the names of the aforesaid witnesses were introduced as eye witnesses of the occurrence. It was next contended that inordinate delay of the F.I.R. without any plausible explanation for the same and the fact that the dead body was brought to the hospital as an unknown dead body completely rules out the claim of the prosecution that the incident in question was ever witnessed by the aforesaid two witnesses. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been pointed out that the accused is not having any criminal history and he is in jail since 12.8.2013 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

(3.) Learned A.G.A. as well as counsel for the first informant opposed the prayer for bail and have tried to submit that as the first informant was not the eye witness, therefore, the discrepancy of weapon is of no avail and the same can not discredit the version of the first informant. Further submission is that the delay in lodging the F.I.R. was for the reason that the witnesses got terrified because of the gruesome nature of the occurrence. The applicant is also brother of the deceased and, therefore, the other family members did not want to embroil themselves in the controversy unless the wife of the deceased had arrived.