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Faiyaj v. State Of U.P. - CRIMINAL APPEAL No. 1705 of 2004 [2005] RD-AH 772 (17 March 2005)


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Court No. 46.

Criminal Appeal No. 1705 of 2004

Faiyaz Versus State of U.P.

Hon'ble R. C. Deepak, J.

Hon'ble M. K. Mittal, J.

We  have heard Sri R.K.Khanna, learned counsel for the accused appellant,  learned A.G.A. for the State and perused the record.

According to prosecution case when the deceased Saleem was talking to Yusuf in the rasta near his shop, Faiyaj armed with knife came and started giving knife blow to Saleem with an intention to kill him. He raised alarm and ran to save his life but the accused chased him and gave further knife blows. Saleem fell down in injured condition near the transformer and the accused ran away. The incident took place on 26.4.2000 at about 3.30 p.m. The witnesses Yusuf and others took Saleem to Police Station where he got the report written by Nazar Mohammad and lodged the same at the Police Station. At that time, he informed the Police Personnel that he was attacked by Faiyaj. Investigating Officer also recorded his statement under Section 161 Cr.P.C., and then he was sent to the hospital. The case was initially registered under Section 307 IPC but after the death of Saleem it was converted under Section 302 IPC. He was taken to the hospital in Chandauli. The Doctor examined him, gave first aid and asked Yusuf to take the injured to District Hospital. When they were taking him to District Hospital in Maruti Car, he expired. The postmortem report shows that the deceased had received four incised wounds on his head and abdomen region.

Learned counsel for the accused appellant has contended that accused has been falsely implicated and that the witnesses did not see the incident. He also contended that one of the witnesses has also stated that the accused was carrying iron rod and he snatched the iron rod and in that scuffle, the knife fell down on the ground. Learned A.G.A. has contended that there is no reason for false implication of the accused and the witness Yusuf is an eye witness and he has fully supported the prosecution case and his testimony has been corroborated by the medical evidence. As far as the question of Iron rod being carried by the accused is concerned, that is prior to this incident. In this connection, Naushad Hussain P.W.-2 brother of the deceased has stated that few months prior to the incident when he had come to Chandauli, his brother was sitting in his shop. At that time, the accused came with Iron rod which was taken by Naushad Hussain and the accused went away threatening. This witness has clearly stated that at the time of present incident, he was not present as he was in Delhi. It appears that the learned counsel for the accused appellant has some confusion in this regard. As far as the eye witness Yusuf is concerned, he has no where stated that any blow was given by Iron rod by the accused.

Learned counsel for the accused appellant has further contended that according to prosecution case, the F.I.R. was dictated by Saleem but  medical evidence shows that after receiving injuries Saleem would not have been in a position to dictate any F.I.R..He also stated that the F.I.R. bears thumb impression of Saleem, although he was a literate person as has been stated by Yusuf. According to Yusuf, there were knife injuries on the hands of Saleem, therefore, he put his thumb impression. Even if, for the arguments sake the plea of learned counsel for the accused appellant that the injured must not have been in a condition to dictate the report is accepted, the fact remains that he told the Police Personnel that the attack was made by the accused. This fact has been stated by the Police witnesses examined in this case and there is no reason to discard their testimony on this ground. As far as involvement of the accused in this case is concerned, learned A.G.A. has contended that Mohd. Yusuf has made positive statement and there is no reason to disbelieve his testimony. It has also come in evidence that there was some dispute about the money and that lead the accused to commit this incident.

In view of 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 appellant Faiyaj is hereby rejected.

Dated: 17.3.2005



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