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Paras v. State Of U.P. - CRIMINAL APPEAL No. 4535 of 2007  RD-AH 14067 (16 August 2007)
Criminal Appeal No.4535 of 2007
Paras vs. State of U.P.
Heard learned counsel for the appellant and learned A.G.A. and perused the whole record.
Learned counsel for the appellant/accused contended that the appellant along with other co-accused persons were not carrying any weapon in their hands when they arrived at the spot, just prior to the incident both the parties had assembled at the spot and were talking with each other amicably, coupled with the fact that Hockey/danda, which has been attributed to the appellant is not deadly weapon, no offence under Section 302 I.P.C. could be said to have been made out against the appellant. It has not been specified as to who was the author of the injury No.1, which is a lacerated wound on the head region, underneath which haematoma was found and which appears to have proved fatal, according to the statement of P.W.5, Dr. V.K.Dubey, injury no.2, which was also a lacerated wound on head region was simple in nature.
It is further contended that the motive suggested by the prosecution was also doubtful. The presence of first informant Ramdhani (P.W.1) at the spot was doubtful and the F.I.R. lodged by him was also anti timed and it does not appear to have come into existence until preparation of inquest report. It is further contended that the statement of alleged eye witnesses i.e. P.W.1,P.W.2 and P.W.3 were contradictory to each other regarding the weapon i.e. Hockey or Danda allegedly used by the appellant and in any case in the absence of any specific role assigned by them, as to who amongst the appellant and co-accused Kedar was the author of solitary fatal injury No.1, found on the deadbody of the deceased. It is further contended that the incident was not premaditated. Therefore, no offence beyond 325/34 I.P.C. or at the worst 304 (2) I.P.C., could be said to have been made out against the appellant. It is further contended that admittedly there was nothing on record to show that all the accused persons had assaulted the deceased and the injured with common object to kill them.
It is further contended that co-accused Tirath has been acquitted and co-accused Kedar has already died during the course of trial. It is further contended that the appellant was suffering from disease of AIDS i.e. H.I.V. Positive, for which he has undergoing treatment P.G.I. Chandigarh and there was no proper arrangement for treatment of said disease in the jail hospital. Therefore, his bail application is also liable to be considered on humanitarian and compassionate considerations.
On the other hand learned A.G.A. has urged that this is the case wherein one person Ramji had died and other four persons have sustained injuries. Evidence of fact witnesses is corroborated with the post mortem report of the deceased as well as injury report of the injured. There is no delay in lodging the F.I.R.. Proper treatment may be given to the appellant for his disease in custody by sending him to the same hospital.
First information report has been lodged by P.W.1 Ramdhani within two hours after the incident. Gangadeen and co-accused Ramdeen are the real brothers. On the date of the incident survey was being done regarding old house of them at about 3.00 P.M. At the same time, appellant and Kedar have objected not to give the share. Ramji has opposed by stating that there is half share of him of the house, upon which the appellant Paras and Kedar, who were armed with Hockey/Danda assaulted inflicted injury on Ramji, who fallen down on the ground. Thereafter, co-accused Tirath assaulted knife injury on his face. Gangadeen and Ramawadh had tried to save Ramji. They were also beaten by co-accused Dhanushdhari and Ramdeen with lathi. They had also fallen down. Thereafter, Smt. Lacchana, Kalindi, Vidya and Manju had come to save Gangadeen, upon which Lacchana was also beaten by co-accused Kismati, Manju with lathi. Kalindi, Viday and Manju were also beaten by Gulabjali, Rumali and Paviata by throwing bricks. Co-accused Gulabjali caused injury upon Hasuli of Gangadeen by throwing bricks. Therefore, the including the above co-accused persons formed unlawful assembly and in prosecution of common object of such assembly Ramji was murdered by them. There will be no effect regarding non specified role to cause the fatal injury no.1 on the deadbody of the deceased. This is the case of broad day light murder and both parties are related to one family. In such circumstance, no one could be implicated falsely in this case. There are four injured persons, who sustained total 17 injuries while 8 injuries were found on the deadbody of the deceased. Evidence of P.W.1,P.W.2 and P.W.3 is also supported with the post mortem report as well as injury reports of the injured persons. Fracture was also found in the injury no.1 of injured i.e. Gangadeen.
It is also worthwhile to mention here that no any injury was received on behalf of the appellant's side. There was also no cross case on behalf of the appellant's side.
So far as the disease of AIDS is concerned, his treatment further may be made in custody by sending him to the P.G.I., Chandigarh.
This is the case of direct evidence. Motive has no significance in such type of cases.
After considering the facts and circumstances of the case and submissions made by the learned counsel for the appellant, the prayer for bail of the appellant is liable to be refused.
Consequently, the prayer for bail of the appellant is refused.
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