HAPPU AND OTHERS Vs. STATE OF U.P.

JUDGEMENT

(1.) THE appellants named above were tried in S.T. No. 1155 of 1998 (State vs. Happu & others), by Additional Sessions Judge, Fast Track Court No. 3 Budaun, who by the judgement and order dated 20.01.2006, convicted and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 20, 000/- each under section 302 read with section 34 IPC, with further rigorous imprisonment for ten years and to pay a fine of Rs. 5, 000/-each, under section 307 read with section 34 IPC. They have challenged their conviction and sentence by means of this appeal and have made a prayer for granting bail pendentilite.

(2.) AN FIR was lodged by Sukhpal son of Bal Kishan on 18.02.1998 at P.S. Binawar, District Budaun, where a case under section 302/307 IPC was registered at Crime No. 42/98 against the appellants-accused. The allegations made in the FIR, in brief, are that on 18.02.1998, Naresh and Rajvir were going on dunlop to bring their engine from the field and when at about 5.00 p.m. they reached near the field of Damodar, the accused Happu, Rishipal, Afsar and Kallector fired on them by illicit guns and tamanchas, due to which Naresh sustained injuries and died instantaneously and Rajvir also sustained fire arm injury.

(3.) ALTHOUGH arguments touching the merit of the case including anti timing of FIR and doubt about the presence of the complainant Sukhpal (P.W.1) and Rajendra (P.W.3) at the time of alleged incident were made by Sri Manish Tiwary learned counsel for the appellants, but his main contention was that there is material inconsistency in oral and medical evidence, which can not be reconciled and hence the appellants deserve bail in this case, because due to the material inconsistency in oral and medical evidence, reliance cannot be placed on the testimony of the witnesses examined by the prosecution. The contention of the learned counsel was that according to the FIR version, only fire arms were used in the alleged incident and the deceased Naresh is also said to have sustained fire arm injuries only, but at the time of post-mortem examination, in addition to fire arm injuries, some other ante-mortem injuries which could not be caused by fire arms were also found on the person of deceased. Our attention was drawn towards the post-mortem report Ext. Ka 15, which was proved by P.W.7 Dr. D.K. Saxena, who had conducted autopsy on the dead body of deceased on 19.02.1998.