NISHANT Vs. STATE OF U P

JUDGEMENT

(1.) VINOD Prasad, J. Counter-affidavit filed by Sri V. M. Zaidi, learned Counsel for the informant respondent today in Court is taken on record. Learned Counsel for the applicant does not propose to file any rejoinder affidavit thereto.

(2.) HEARD Sri J. S. Sengar, learned Counsel for the applicant in support of this bail application, Sri V. M. Zaidi, learned Counsel for the informant and the learned AGA in opposition.

(3.) SRI J. S. Sengar, learned Counsel for the applicant contended that the prosecution version is cooked up and manufactured and it had suppressed true version and genesis of the incident. He contended that it was the prosecution side which was the aggressor and it was they who started capturing the both and started indulging into fake voting and when stopped by Amir Ahmad they murdered him by assaulting him with lathi and dandas and then the prosecution side started firing as a result of which five persons from the side of the accused namely Hussain Ahmad, Manjibun Hasan, Abdul Wahid, Smt. Sajida, Km. Tahfim sustained fire arm injuries out of whom Hussain Ahmad is aged about 8 years, Km. Tahfim is aged about 18 years and Smt. Sanjeeda is aged about 40 years. He also contended that Smt. Mahjabeen also died because of the firing made by the prosecution side itself. He also contended that a FIR of cross version from the side of the accused has also been registered as crime number 383-A of 2005, under Sections 147, 148, 149, 504, 307, 302, IPC at the same police station. He further contended that the prosecution has suppressed the injuries of the five injured persons from the side of the accused so much so that it had not said any thing regarding their presence at the place of the incident when their presence on the spot at the time of the incident is cemented by the gun shot injuries sustained by them. He contended that there is absolutely no explanation for the injuries sustained by these five persons from the side of the prosecution and hence the prosecution version is not a true narration of the incident but is a tainted one and cannot be believed. He submitted that the boy Hussain Ahmad aged about 8 years had sustained serious firearm injuries so much so that they had fractures in bony cage and there was passive collapse of his right lung, He also submitted that Abdul Wahid and Hussain from the side of the accused were admitted in the hospital from 20-10-2005 to 8-11-2005. He submitted that since there is absolutely no explanation of the injuries sustained by the injured from the side of the accused, therefore, in view of the law laid down by the apex Court in the case of Laxmi Singh v. State of Bihar, 1976 SCC (Cr.), the prosecution version should not be accepted to be correct. He also pointed out that the injured persons from the side of the accused were examined on the same day of the incident in district hospital. He contended that the prosecution version that the incident occurred to take revenge is false and the version of the defence that it occurred to check the fake voting is more probable and natural other wise from the prosecution allegations the injured persons from the side of the accused would not have sustained injuries and the deceased from the side of the accused would not have sustained blunt object injuries as so many persons from the side of the accused were armed with fire arm weapons and they would not have left Amir Ahmad at the mercy of villagers. More over from the version given by the prosecution the injured from the side of the accused will not sustain injuries by firearm. He submitted that as to which party was the aggressor can be decide only after the evidence is led during the trial and at this stage it cannot be said that the version of the defence is false or cooked up. He contended that the accused must get a fair chance of substantiating their version of right of private defence and since there is no specific allegation against the applicant he deserves bail. He also contended that the applicant does not have any criminal history nor he is wanted in any other case and that the applicant will not abscond nor tamper with prosecution witnesses and he is ready to co operate with the trial.