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Markandey Yadav v. State Of U.P. - CRIMINAL APPEAL No. 5092 of 2006  RD-AH 16795 (25 September 2006)
Hon'ble Mukteshwar Prasad J.
Hon'ble K.N. Ojha, J.
Heard Sri A. B. Saran, learned counsel for the appellants, learned A.G.A. and perused the judgment under appeal and lower court record.
It is contended that both the appellants were on bail during trial. The F.I.R. was ante-timed and no independent witness of the locality was examined to support the prosecution version. It appears that the incident took place in the odd ours of the night and actually none saw the incident. P.W. 2 Poltu turned hostile and did not support the prosecution story. So far as the P.W. 1 Subba and P.W. 4 Ram Badan Yadav are concerned, they are related to the deceased and the court below erred in placing reliance on their testimony. Some discrepancies regarding carrying of the dead body from the scene of incident to mortuary have also been pointed out.
On the other hand, learned A.G.A. submitted that the incident took place at about 6.30 P.M. in the month of January and F.I.R. was lodged on the same night at 8.30 P.M. at Police Station Maradah situated at 5 Kms. from the scene of incident and both the appellants were named therein. Appellant Sri Ram Yadav, who is said to have hurled bomb and killed Moti Chand, is husband of the niece of the deceased. Sri Ram Yadav had left his first wife and remarried. A litigation is pending in the court which was being looked after by the deceased and thus, Sri Ram Yadav had a strong motive to kill Moti Chand. Markandey is the real brother of Sri Ram Yadav. It is further contended that ante-mortem injuries found on the body of the deceased are wholly consistent with the prosecution version and two witnesses P.W. 1 Subba and P.W. 4 Ram Badan supported the prosecution version on all material points.
After having considered the entire submissions made on behalf of the parties, looking into the facts and circumstances of the case as well as evidence led during trial, we find that main role of hurling bomb and killing Moti Chand is assigned to Sri Ram Yadav, as such, we find no ground to enlarge Sri Ram Yadav on bail. Consequently, his prayer for bail is rejected.
So far as Markandey Yadav is concerned, we are of the opinion he is entitled to bail.
Let appellant Markandey Yadav be released on bail during pendency of the appeal in S.T. No.193 of 1997 (State versus Markandey Yadav and two others) on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the C.J. M. Ghazipur.
If the appellant deposits a sum of Rs.5000/- as fine in the court below within a period of two month from today, the recovery of remaining amount of fine shall remain stayed during pendency of appeal.
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