GAMA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is the third bail application in Crime No. 97 under S.302, I.P.C., P.S. Naugawan Sadat, District Moradabad.

(2.) The prosecution story as unfolded in the F.I.R. lodged on 29-5-85 at 11.45 A.M., is that the informant Yasin's son Babu, and Iqbal, son of Sardar had gone to take ice in the morning. At about 9 A.M. when they were coming to the village Alampur Kech, Babu was surrounded by Gama and Khacheru, the applicants, Ejaz Haider and Amir Husain. Amir Husain intercepted Babu, the deceased by giving him a lathi blow at his cycle and told him that he would give him a lesson. Amir Husain exhorted Khacheru and the latter fired from his gun in the chest of Babu, who ran to the village. Thereupon Gama fired at Babu from a country made pistol. Babu fell on the ground. Thereupon Ejaz Haider gave a blow to the deceased. This occurrence was witnessed by Iqbal, who was accompanying the deceased and one Ramzani and Ismail. The police station was at a distance of 4 Km. from the place of occurrence. The post-mortem report has been filed. The deceased received injuries from the gun and country made pistol. When the charge sheet was submitted the name of Ejaz Haider was not there. It appears that during investigation the police did not find evidence against Ejaz Haider.

(3.) Heard the learned counsel for the applicants as also the learned State Counsel. For the applicants it was urged that the name of Ejaz Haider was mentioned in the F.I.R. and it appears that the police in collusion with the accused Ejaz Haider, did not submit charge-sheet against him. The case of the applicant was similar to that of Ejaz Haider, against whom no charge-sheet was submitted, hence it was urged that the case against the applicant also becomes doubtful. The statements of most of the witnesses were recorded by the Magistrate under S.164, Cr.P.C., 1973, as the local police was apprehending that the prosecution witnesses might change their statements subsequently. It is on account of this suspicion that the statement had been recorded under S.164 of the Code. Under these circumstances the veracity of the prosecution version becomes doubtful and there was no possibility of conviction. The applicants were accordingly entitled to bail.