Mohd. Rais vs State of U.P.

Naheed Ara Moonis, J.—Heard learned Counsel for the Appellant and the learned A.G.A. for the State.

A prayer for bail has been made in this criminal appeal, which has been filed against a judgment and order dated 18.9.2008, passed by Additional Sessions Judge, Fast Track Court, Room No. 25, Allahabad in Session Trial No. 1476 of 2004, State v. Mohd. Rais and Anr., arising out of case crime No. 87 of 2001, under Sections 307, 452 IPC, P.S. Kotwali, District Allahabad, convicting and sentencing the Appellant for ten years rigorous imprisonment under Sections 307 IPC with a fine of Rs. 2,000/- and for three months rigorous imprisonment u/s 452 IPC, with default stipulation.

According to the prosecution case in the intervening night of 11/12.6.2001 the complainant and his family members were sleeping in their house and his son, Abhishek alias Somesh, P.W.2 was sleeping in the courtyard of the second floor. All of sudden at about 4:00 o''clock the complainant and other family members heard the cry of his son by saying ''bachao-bachao. When they woke up they saw the Appellant was coming down from the stairs having a knife they tried to catch him but he escaped. When they reached at the place of incident they found that the complainant''s son Abhishek alias Somesh having injuries over his neck and hand. Initially the first information report was lodged on 12.6.2001 at about 5:20 am against the Appellant and co-accused Raghavendra who is the brother of the complainant under Sections 452, 307, 120-B IPC as case crime No. 87 of 2001, but the charge was framed against the Appellant under Sections 307, 452 IPC and against the co-accused Raghavendra u/s 120-B IPC.

It is submitted by the learned Counsel for the Appellant that the prosecution case has not been narrated in the manner as it was put forth in the first information report by the complainant as some part of it was overlooked from the first information report during trial. The complainant''s brother Raghavendra, who had some enmity with the complainant about the partition of the property was responsible for the death of his son, but the Appellant has been made a scapegoat.

It is further submitted that the medical evidence does not support the prosecution case as there is one superficial injury over the neck of the injured and according to the doctor it is simple in nature. The other injury is on his hand. There is great inconsistency in the prosecution case with the medical evidence and the statement of witnesses. The brother of the complainant who was also made an accused had already been acquitted from the charge u/s 120-B IPC, while the Appellant has been convicted for an offence under Sections 307, 452 IPC. The Appellant is languishing in jail since 18.9.2008. There is no likelihood of early hearing of the appeal in near future. In case, he is enlarged on bail, he will not misuse the liberty of bail.

Per contra the learned AGA opposed the prayer of bail of the Appellant and submitted that specific role has been attributed to the Appellant for causing injuries to the injured and one injury is on the vital part and in case he is enlarged on bail he will misused the liberty of bail. There is on illegality or perversity in the judgment and order of the trial Court.

Having considered the submissions made by the learned Counsel for the Appellant as well as the learned AGA and looking to the facts and circumstances of the case, without expressing any opinion on the merits of the case, the prayer for bail of the Appellant is allowed.

Let the Appellant, Mohd. Rais, convicted and sentenced in Session Trial No. 1476 of 2004, State v. Mohd. Rais and Anr., arising out of case crime No. 87 of 2001, under Sections 307, 452 IPC, P.S. Kotwali, District Allahabad, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Court concerned.

However, it is open to the complainant to move an application for cancellation of bail in case the Appellants misuse the liberty of bail.