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Vinod v. State Of U.P. - CRIMINAL APPEAL No. 5253 of 2004 [2005] RD-AH 750 (15 March 2005)


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Court No.  46

Criminal Appeal No. 5253 of 2004

Vinod Versus State of U.P.

Hon'ble R. C. Deepak, J.

Hon'ble M. K. Mittal, J.

The accused  appellant Vinod son of Sri Raj Kumar has prayed for release on bail during the pendency of his criminal appeal no. 5253 of 2004 filed against his conviction under Section 302 IPC and sentence of life imprisonment in S.T. No. 201 of 1999 by the Court of Addl. Session Judge, (FTC-Court no.2), Ghazipur.

We have heard Sri R.P. Tiwari, learned counsel for the accused appellant, learned A.G.A. and perused the record.

The prosecution case is that on 31.5.1999 at about 9.30. p.m., Nandkishore @ Pakaodi was attacked by the accused appellant near Roza Bus Sand as there was some business rivalry between the deceased and the accused appellant. Few days prior to this incident, the deceased had slapped co accused Manoj.  When the complainant Chandra Kishore Srivastava, Shiv Murat Yadav, Kanhaiya, Pramod Srivastava and Baliram were returning after seeing a house in Avas Vikas Colony, Roza, Ghazipur, the deceased was also with them but was going a little ahead of them. When they reached near the Bus Stand, four persons came out of hut and Vinod and Manoj were identified by the witnesses in electric light that was burning there. Manoj exhorted on seeing these persons. Nand kishore ran to save his life but was chased by Vinod who fired at him and the shot hit Nand Kishore and fell down. He died at the spot. The complainant lodge the report at Police Station Kotwali Ghazipur, the same night at 10.30 p.m., the distance of Police Station from the place of occurance being 2 and ½ k.ms. The postmortem report shows that the deceased received one fire arm wound of entry on the posterior part of neck. The exit wound was on the floor of the mouth beneath the tongue.

Learned counsel for the accused appellant has vehemently argued that there is no independent witness and the witnesses examined are related and their presence at the place of occurance and at the time of incident cannot be believed. He further contended that there was no light at the time of alleged incident but the learned A.G.A. contended that Sri Chandra Kishore Srivastava, P.W.-1, Shiv Murat Yadav P.W.-2 and Baliram P.W.-3 are reliable witnesses and there is nothing in their testimony to show that they were not present at the time of the incident. Although Chandra Kishore Srivastava is the brother of the deceased but still his presence cannot be ruled out. As far as the question of light is concerned, all the witnesses have stated that there was electric light. The accused examined Kalyan Singh D.W.-1 the operator in the Electricity Department and he has also stated on oath that at 9.30 p.m. there was light in the city.

In view of the facts and circumstances of the case, but without prejudice to the merits of the appeal in any manner whatsoever, we are of the opinion that the accused appellant is not entitled to bail at this stage; therefore, the bail application is liable to be rejected.

Bail application of accused Vinod is hereby rejected.

Dated:- 15.3.2005.



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