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Hamid v. State Of U.P. - CRIMINAL APPEAL No. 2210 of 2006 [2006] RD-AH 11244 (11 July 2006)


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Court No. 21

Criminal Appeal No. 2210 of 2006

Hamid vs. State of U.P.


Criminal Appeal No. 2972 of 2006

Lala alias Hari Shanker vs. State of U.P.


Criminal Appeal No. 2223 of 2006

Rajesh vs. State of U.P.


Hon'ble Mukteshwar Prasad, J.

Hon'ble Vinod Prasad, J.

Connect this appeal along with Criminal Appeal No. 2972 of 2006 (Lala alias Hari Shanker versus State of U.P.) and Criminal Appeal No. 2223 of 2006 (Rajesh vs. State of U.P.).

Since all the three appeals arise out of the same Sessions Trial, therefore, the bail prayer of all the appellants in all the three appeals are being considered by this common order.

It is submitted by learned counsel for the appellants that in this case, Hamid and Rajesh (appellants) were on bail during trial and they have not misused their liberty of bail. They further contended that this is a case of circumstantial evidence and there is no direct evidence againt the appellants. The prosecution has relied upon two circumstances against the appellants.  The first circumstance, according to the prosecution, is through the statement of P.W. 2 Bhagwat, who had seen the appellants coming out of the Arhar field where the dead body of the deceased was found subsequently. The second circumstance against the appellants is their extra judicial confession before P.W. 3 Joginder and P.W. 4 Yasin. So far as the second circumstance of the extra judicial confession is concerned, it is contended that same is retracted and P.W. 3 did not support the making extra judicial confession by the appellants and consequently, P.W. 3 Joginder was declared hostile. So far as evidence of P.W. 4 is concerned, it was pointed that he was inimical to the appellants and therefore, there was no reason for the appellants to make any confession before Yasin P.W. 4 and in fact, the appellants had not made any confessional statement nor there was any reason to make such a confession before P.W. 4 Yasin. They further contended that so far as the first circumstance of the appellants' coming out of Arhar field is concerned, the same was evidenced by P.W. 2 Bhagwat Singh and they contended that Bhagwat Singh is the real uncle of the victim but he did not disclose this fact to any person for a period of two days. From the record, it was pointed out that Bhagwat Singh himself had stated that he did not disclose anything to anybody on or before 20.9.2005. The incident is said to have taken place on 18.9.2005. Therefore, they contended that for two days, the aforesaid witness P.W. 2 did not divulge to anybody about the fact that he had seen the appellants coming out of the field from where the dead body was recovered. Counsel for the appellants further pointed out from the evidence of P.W. 2 that he had not stated the aforesaid fact of coming out of accused from the aforesaid field in hurried manner to the Investigating Officer in his statement recorded under Section 161 Cr.P.C.  It has been pointed out that the said witness had stated that he had not shown his field to the Investigating Officer where he was said to be present at the time of incident. Consequently, it was argued that the said witness is not a reliable witness and he had given evidence against the appellants only because he was a relative of the deceased. It was also argued that in this case, there is no evidence of rape at all. It was pointed out that doctor, who conducted autopsy, was examined by the prosecution but not a single question was asked from the said doctor as to whether victim was subjected to rape or not.

We have also gone through the evidence of Dr. Dinesh Kumar, P.W. 7. The doctor has nowhere stated that the victim was subjected to any rape. No injury was found on her private part and other parts of body suggestive of rape being committed on her. It further transpires that slides were prepared of the smear from the vagina of the victim but no further evidence was led regarding the said slides. Thus, counsel for the appellants contended that there is absolutely nothing on record to suggest that the victim was subjected to rape and therefore, the report of chemical examiner is of no value as also the primary and best evidence was not led in the case at all.

Learned A.G.A. also could not dispute the fact that P.W. 2 did not divulge anybody that he had seen the accused coming out of the field in hurried manner for a period of two days and the aforesaid statement was not given by him during investigation in his statement under Section 161 Cr.P.C. and that doctor P.W. 7 had nowhere stated that the victim was subjected to rape or any injury was found on her private part suggestive of rape.

In this view of the matter, without adverting further over the merits of the case, we consider it appropriate to release the appellants on bail during pendency of the appeals.

Let the appellants, Hamid, Lala @ Hari Shanker and Rajesh be released on bail in S.T. No. 1239 of 2004 (State vs. Hamid and others) on their executing a personal bond to the tune of Rs. 50,000/- and two sureties each in the like amount to the satisfaction of the C.J. M. Bulandshahar on the conditions that they will report to the Police Station once in a month on the date and time to be fixed by the Officer In charge of the Police Station and that he will not leave the district Bulandshahar without the prior permission of the C.J. M. Bulandshahar. In the event of breach of any of the conditions, this bail granted to the appellants shall stand automatically cancelled.

The appellants will deposit a sum of Rs. 5,000/- as fine within a period of one month from today. The realization of remaining amount of fine shall remain stayed during pendency of the appeal.

The Chief Judicial Magistrate will send photocopies of the bail bonds to this Court immediately after its acceptance.

Dated: 11.7.2006



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