AJAY YADAV Vs. STATE OF U P

JUDGEMENT

(1.) Heard learned counsel for the applicant-appellant Arvind Kumar Srivastava and learned A.G.A.

(2.) Perused the record.

(3.) Submission of counsel for appellant is that in this matter even though the incident had taken place at about 08:00 pm but FIR of the case was lodged in the next morning at 06:10 am against unknown persons. The author of the FIR is the uncle of the deceased who has been examined as PW-2. A number of persons namely Hariram, Arvind, Manoj Vishwakarma and Jawahar have been cited as eye witnesses of the occurrence. This Jawahar is non-else than the father of the deceased himself who has been examined as PW-1. It was also pointed out that the appellant as well as other co-accused both were well known to the deceased and their family from before as they belong to the same place. Appellant is also said to have shared some kind of business with the deceased from before and both were previously well acquainted with each other. The central argument, raised by the counsel is that though the father of the deceased has claimed to have identified the assailants on the spot and the FIR was lodged by the uncle of the deceased himself and the occurrence had already been witnessed by a multiple number of persons, it sounds wholly incompatible as to how the FIR was lodged against some unknown persons. Further submission is that this major incongruity has been sought to be explained by the prosecution on the ground that the father of the deceased was under the shock of the incident and he was not in a steady state of consciousness after the occurrence and that is why the names of the assailants could not be divulged or revealed properly. But according to the counsel for the appellant such kind of explanation appears to be a half baked lame plea and does not at all appear to be a very palatable explanation. In the wake of the fact that the incident was witnessed by number of known persons, the circumstances of the case appear to be such that it sounds highly improbable to suggest that the name of the assailants would have still remained unknown to the scribe in such circumstances. It was not a blind murder according to prosecution which remained unwitnessed by anybody. Even the FIR was not lodged in rush or haste and it cannot be said that there was no adequate time to properly ascertain the identity of assailants. The contention is that the contradiction as is presented by the nature of the FIR having complete omission about the names of assailants vis a vis the subsequent naming of the appellant as accused, is too loud to be lightly explained or ignored and it would go a long way to suggest the false implication of the appellant. Counsel has tried to elaborate upon the argument submitting that no convincing or palatable explanation has been given in this regard and it is clearly deducible from the evidence that for a long period of time the identity of assailants remained an unravelled mistry and it was only after a lapse of substantial period of time and after making due deliberations that the prosecution side could decide to implicate the appellant in this case because of some previous bitterness which admittedly is said to have been existed in between him and the deceased. Submission is that at any rate with such kind of major diagonal contradiction available on record, at least a prima facie case of bail in appellant's favour is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the appellant have also been touched upon at length. It has also been assured on behalf of appellant that he is ready to co-operate with the process of law and shall faithfully make himself available before the court whenever required. It has been pointed out that the appellant was on bail during the course of trial which was never misused by him. It has also been submitted that he is in jail since 07.09.2017 and there is no likelihood of this appeal to be heard at an early date or in near future in the wake of heavy pendency of cases in the court. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of this appeal being allowed after final hearing takes place.