ABDUL MATEEN, J. - (1.) HEARD learned counsel for the appellants and learned Additional Government Advocate with respect to prayer for bail in pending appeal. Appellants-Lala @ Abdul Gaffar, Sabir and Bakridi by means of judgement and order dated 21.03.2009 passed by Additional Sessions Judge, Court No. 4 Rae Bareli in Sessions Trial Nos. 437 of 1996, 213 of 2000 and 518 of 1999 have been convicted under Section 302/34 IPC and under Section 25 Arms Act and sentenced for the maximum term of life imprisonment with fine stipulation thereof.
(2.) WE have gone through the contents of the judgment of the learned court below, the prosecution evidence and lower court record. It has been submitted by learned counsel for the appellants that no doubt incident had taken place at about 09.00 a.m. of which FIR has been lodged at 11.15 a.m. on the same day. The role assigned to the present appellants is of firing upon the deceased, who after receiving firearm injuries succumbed to the same. Two other co-accused, namely, Zafar and Naim were assigned the role of inflicting lathi blows upon the person of the deceased. As per post mortem report Wajid (deceased) had received three firearm injuries which correspond two entry wounds and one exit wound. It has further been argued that after considering the prosecution evidence, the court below came to the conclusion, at page 46 of the judgment, that inclusion of the names of Zafar and Naim in the array of the accused is false and they have been falsely implicated as they had not participated in the commission of crime, as such, it has been argued by learned counsel for the appellants that then what remains in the evidence to prove that the appellants had participated in the commission of crime. Apart from it, it has been submitted that the deceased Wajid was history-sheeter as stated by DW-4 Taj Mohammad and actually he was encountered by the police and not as put up by the prosecution. It has also been argued that PW-1 Mohd. Ishaq, who is complainant but not an eye-witness, had stated that whatever has been stated by PW-2 Nanhai alias Mustafa he has incorporated in the FIR although PW-2 Nanhai alias Mustafa when confronted he stated not to have told anything to PW-1 about the occurrence. It is also the case of prosecution that after killing the deceased on a cot his body was dragged to considerable length and was left in open place but surprisingly there is no dragging mark on the body of the deceased. Although the incident is of July 1996 there is no other eye-witnesses count except PW-2 who is said to have seen the occurrence even his testimony is shaky. Thus while evaluating the prosecution evidence, we find that the court below has committed a manifest error in convicting the appellants and on the same set of evidence acquitting coaccused Zafar and Naim. In other words, learned counsel for the appellant submitted that if inclusion of names of two persons were found to be false, how for conviction of the appellants on the basis of same evidence can be said to be justified.
(3.) IT has further been submitted that appellants were on bail during trial and they did not misuse the liberty of bail granted to them. It has also been submitted that the appeal will take considerable long time for reaching on its logical conclusion.;