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Anwar v. State Of U.P. - CRIMINAL APPEAL No. 4703 of 2005 [2006] RD-AH 10412 (26 May 2006)


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Criminal Appeal No.4703 of 2005

Anwar Son of Akbar.........Vs...................State of U.P.

Connected with

Criminal Appeal No.5230 of 2005

Saddam son of Maqsood......................Vs. State of U.P.

Hon. Mukteshwar Prasad, J

Hon. Vinod Prasad, J

These two appeals being Criminal Appeal No. 4703 of 2005, Anwar Vs. State of U.P. and Criminal Appeal No.5230 of 2005 Saddam Vs. State of U.P. arises out of the same sessions trial no.547 of 2001, State Versus Anwar and others (crime no. 1/01), under Sections 302/34, 307/34, 452 I.P.C., P.S. Nanauta, district Saharanpur decided by Additional Sessions Judge, Fast Tract Court no.2, Saharanpur and hence, the bail prayer of the appellants Anwar and Saddam in both the appeals are being considered and disposed of by this common order.

We have heard learned counsel for the appellants Sri Dharmandra Singhal, Sunil Kumar Srivastava and Ashfaq Ahmad Ansari and Sri S.K. Pundir learned counsel for the informant as well as learned A.G.A. in opposition.

It is contended by learned counsel for the appellants that in this case the appellants are not named in the first information report even though it was lodged by Alisher who knew the appellants from before. They further contended that in this case the appellants have been acquitted under Section 25 Arms Act and the alleged recovery of weapon from the pointing out of the appellants have been found to be false by the trial court itself. They further contended that it is a case of no motive and infact the appellants have been implicated due to enmity. They further contended that no independent witness has been examined during the trial and all the witnesses are related to each other. They also contended that the statement of the two eye-witnesses Sattar and Dilshad was recorded after two days by the Investigating Officer. They also submitted that it is a night incident and the prosecution has not been able to establish sufficient light at the place of the incident. They also submitted that the alleged recovered countrymade pistol and cartridges were not produce in the Court nor the recovery were made in accordance with Section 27 of the Evidence Act. In support of their contention learned counsel for the appellants invited our attention on pages 16, 17, 29, 30, 32 of the impugned judgment.

Learned A.G.A. as well as learned counsel for the complainant on the other hand could not dispute the fact that none of the appellants are named in the first information report and informant knew the appellants from before. They also could not dispute the fact that the statement of the two eyewitnesses Sattar and Dilshad were recorded after a delay of two days. They also could not dispute the fact that the trial court has recorded a finding that the recovery under Section 27 of Evidence Act in this case is not proved.

We have given our anxious consideration on the submission canvassed at the bar and have gone through the impugned judgment and the trial court record. We are of the opinion that the two appellants Saddam and Anwar are entitled to bail during the pendency of the appeal as they were on bail during the trial and they had not misused their liberty.

Let the appellants Saddam and Anwar be enlarged on bail during pendency of appeal on their executing a personal bond and furnishing two sureties, each in the like amount to the satisfaction of Additional Sessions Judge, court no.2 in S.T. No.547/2001, State Versus Anwar and others, under Sections 302/34, 307/34, 452 I.P.C. and Section 25 Arms Act provided the entire amount of fine is deposited by the appellants within a period of one month from today.

The C.J.M. Saharanpur will send photocopies of the bail bonds to this Court immediately.

Dt.26th May 2006



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