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Aas Mohamad v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 10559 of 2006 [2006] RD-AH 10571 (2 June 2006)


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Criminal Misc. Bail Application No.10559 of 2006

Aas Mohammad                      vs.                                      State of U.P.

Hon.Shiv Shanker,J.

Heard argument of learned counsel for the applicant and learned A.G.A..

According to prosecution case, on  24.4.2005 accused persons namely Ibrahim  armed with DBBL gun, Aas Mohammad armed with Balkati, Mujahid armed with Farsa, Hasmat armed with country made pistol, Nasir armed with gun, Rafik arme with Chhura and Safik armed with sword, attacked on Munna Khan and Sagir.  Munna Khan died on the spot. Sagir also suffered injuries on his head  and chest.

It is contended on behalf of the applicant that the F.I.R. was  anti timed lodged by the complainant as it was not in existence till the time of  the preparation of the inquest report as a copy of the chic F.I.R. was not annexed with the inquest report.

It is further contended that the deceased was murdered in the jungle where there was no cot but dead-body of the deceased was found on the cot near Peepal tree as per the inquest report which is one and half furlong away from village Laldla Vas. Therefore, inquest report shows that the deceased has been murdered somewhere else  and  the dead-body of the deceased was kept on cot and said place has been shown as a place of occurrence.

Investigating Officer has recorded in the spot inspection that Khoka kartoos (empty cartridges) were also recovered from the place of occurrence but no recovery memo was made by I.O. in the present case. However, the said fact has been specifically noted in the site plan regarding the recovery of empty cartridges. It is further contended that there is material contradiction in between the prosecution case and the medical report.

Deceased does not sustain any injury of balkati. All the injuries, which are  appeared to have been sustained by the deceased, were  caused to him by sharp edged weapon. Post mortem report reveals that ante mortem injuries were not caused by the balkati.

It is further contended  that there was no motive against the applicant to commit the offence of murder. Whatever the motive has been suggested by the prosecution to commit the crime is alleged solely against the co-accused Safik son of Basir. According to prosecution case, co-accused Safik was armed with sword, who was having the motive and injures were caused by  co-accused.

It is further contended that the false recovery of Balkati has been shown by the prosecution against the applicant. The  place of recovery is the open place on the road. No blood stain was found on the recovered balkati and the recovery memo of the said Balkati is not having the signature of the applicant.

It is further contended that injured Sagir sustained lacerated wound. None  of the accused was having any blunt object  at the time of occurrence. It is further alleged that the charge-sheet has been submitted against all the accused persons in the court of Chief Judicial Magistrate, Bulandshahar. It has not yet been committed to the court of Session. The applicant is in jail since last  about nine months.

Accused-applicant is named in the F.I.R. along with other accused persons. He was allegedly holding Balkati, which is the sharp edged weapon. According to the post mortem report of the deceased five incised ante mortem injuries were found on the person of the deceased. At this stage, this cannot be ruled out that the said ante mortem injuries could not be caused by the balkati. Role of the present applicant has been shown to cause the injury with the Balkati. Same has been discovered on his pointing out.

So far as the injury of injured Sagir is concerned, who received one lacerated wound 7x2cm. in the right side head, it is possible  that back side portion of the sharp edged weapon might have used. However, there is no medical conflict from the version of the F.I.R.. So far as the contention of ante time F.I.R. is concerned, crime number, Sections etc. have been mentioned in the inquest report. Therefore, it is liable to be deemed that the F.I.R. was in existence at the time of preparing inquest report. It may be an omission or mistake on the part of the police officer, who prepared inquest report and not to annex the copy of the chik report. So far as the eye witnesses are concerned  then  specifically stated that Munna Khan deceased and Sagir injured  were there at the relevant place. Thereafter, site plan has already been prepared by the I.O. regarding place of occurrence. Later on the dead-body of the deceased was taken to any place that does not mean that the place of occurrence has been changed. It is worthwhile to mention  here that it has been mentioned in the site plan by the I.O. regarding empty cartridge lying on the place of occurrence. This may be the mistake of the I.O. not to take the Khoka Kartoos in his custody and prepare the fard. This will not affect the merits of the case. This is the case of direct evidence. Therefore, the motive has no significance. However, the motive has been shown against the co-accused to whom the present applicant  is the companion.   It is not necessary that  there will be specific motive against all the accused persons. However, in absence of motive, the prosecution case cannot be disbelieved if rest upon the direct evidence.

After considering the facts and circumstances of the case, I do not find any force in the arguments of learned counsel for the applicant.

Thus, the bail application is hereby rejected.




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