Monu Pandey and Avnish Sharma alias Babbu vs State of U.P.

Prayer for bail in the connected appeals preferred by Monu Pandey and Avnish Sharma alias Babbu are being heard and disposed of by means of this common order.

We have heard Sri M.K. Srivastava, learned Counsel for the appellant Monu Pandey and Sri V.P. Srivastava, learned Senior Counsel at length for the appellant Avnish Sharma and the learned A.G.A. for the State.

We have also perused the Trial Court''s judgment and record.

The incident in question took place on 3.8.2003 at 8.30 p.m. The F.I.R. was lodged on the same day at 9.10 p.m. at P.S. Faridpur, which is three furlong away by informant Mohanlal, who is the brother of the deceased Anokhe Lal.

It was argued by the learned Counsel for the appellants that the deceased Anokhe Lal had a fire arm injury on the stomach, which was attributed to the appellant Avnish Sharma, who is shown to be armed with a country made pistol. The another appellant Monu Pandey shown to be armed with a knife and the injury No. 1, which is a lacerated wound 5 cm x 2 cm x bone deep, which is on the right hand with inverted margins with blackening resulting in fracture of second metacarpal bone was also described, as a fire arm wound by the doctor and it was argued that knife was wrongly attributed to the appellant Monu Pandey.

Sri V.P. Srivastava further argued that as a matter of fact the three alleged eye witnesses P.W. 1 Mohanlal, P.W.2 Sushil Babu and P.W. 3 Ashok Sharma have wrongly been shown at the place of incident. The F.I.R. was ante-timed and that the police reached the village and took away the body in the morning, then the report was lodged. The deceased used to take smack. Although assault by belt, kicks and fists on the deceased was also shown, but it does not have any injury, lacerated wounds or abrasions or contusions to corroborate this injury. The P.W. 1 admits that he was influenced by mohallawale for lodging the report. Some discrepancy in the inquest, such as absence of crime number in the first page and absence of crime number in the other papers have also been mentioned. There is some contradiction, as the P.W. 1 had admitted at same point in the long cross examination that he was informed by the other witnesses and came later. The appellants were on bail during trial.

Learned A.G.A., however, argued that the report had been lodged within 40 minutes at the police station, which is three furlongs away. It is a natural story inasmuch as the deceased, who was a painter, was suspected of having committed some theft in the house of Avnish Sharma and that in the course of the forced inquiry and torture against the deceased, he was fired upon by Avnish Sharma to whom the main role has been assigned in this case. It was argued that the contradictions pointed out by the learned Counsel for the appellants are minor in nature and that the total effect will be appreciated when the appeal will be heard finally. Again significance of absence of crime number on the first page of the inquest and other papers is a matter of appreciation at the appropriate stage, when the appeal will be heard finally.

It was also argued that for some defects in the investigation by the Investigating Officer, the eyewitnesses account cannot be over looked.

Having heard the submissions of the learned Counsel for the parties, without expressing any opinion on the merits of the case, we are inclined to grant bail to the appellant Monu Pandey and disallow bail to Avnish Sharma alias Babbu. Prayer for bail of Avnish Sharma alias Babbu is refused.

Let the appellant Monu Pandey convicted and sentenced by the Additional Sessions Judge, Court No. 13, Bareilly, in S.T. No. 236 of 2004, arising out of Case Crime No. 385 of 2003, under Sections 302/34 IPC, P.S. Faridpur, district Bareilly, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.