HARI KISHAN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellant, learned A.G.A. and perused the lower court record.

(2.) THIS is second bail application moved on behalf of the appellant Harikishan with a prayer that he may be released on bail during pendency of his appeal before this court. His first bail application has been rejected by another bench of this court on 26.7.2013.

(3.) IT is contended by learned counsel for the appellant that in the present case no independent witness has been examined before the trial court to support the prosecution story. P.W. 1 Smt. Prakashi is wife of the deceased, she had lodged the FIR and P.W. 2 Anita is daughter of the deceased and their presence at the alleged place of the incident was highly doubtful. According to their deposition, after commission of the alleged offence they were crying by holding the dead body of the deceased, but no blood was found on their cloths. The identity of the appellant Harikishan has not been properly established because P.W. 1 stated on oath before the trial court on 14.2.2007 that the accused Harikishan was not present in the court whereas he was present in the court and had signed the order sheet of the court. It shows that the appellant Harikishan was not known to P.W. 1 Smt. Prakashi. A case was registered as report No. 253 of 1993 State Vs. Rajendra Kumar and others under sections 343, 323/34 IPC in the court of Addl. C.M.M., Kadkadduma, at Delhi in which the appellant Harikishan was accused. The statement of Smt. Prakashi was recorded in which she could not identify the appellant before the court, even she should not tell the correct name of the appellant to the court. The prosecution version with regard to the manner of the incident is not corroborated by the post mortem examination report. The deceased had sustained three gun shot wounds of entry, two gun shot wounds of exit and one scabbed abrasion whereas the allegation is that injuries were caused by the appellant Harikishan, Tej Singh and Nandi Bhat. All the gun shot wounds of entry were on head region. There are material contradiction in the statement of P.W. 1 and P.W. 2 recorded before the trial court. In such circumstances, the appellant may be released on bail.