S.C.AGARWAL,J. - (1.) THIS is the first bail application on behalf of the accused-applicant Yunus @ Bulla involved in case crime no.1384 of 2009 under sections 302, 307, 504 I.P.C. pertaining to police station Nazibabad, district Bijnor. Heard Sri V.P. Srivastava, learned senior advocate assisted by Sri Vinod Tripathi, learned counsel for the applicant, Sri Mohd. Afzal, learned counsel for the complainant, learned A.G.A. for the State on 24.5.2010 and perused the records.
(2.) LEARNED counsel for the applicant submitted that the applicant is innocent and has been falsely implicated due to enmity. The applicant also suffered nine injuries in the incident. After his arrest the applicant was got medically examined on 3.7.2009 by the police and nine injuries were found on his person, which have not been explained by the prosecution. It was contended that injured Khaleel Ahmed stated before the investigating officer that the applicant gave knife blow to Anees and co-accused Gulzar assaulted Khaleel Ahmed with knife, but in the same statement he subsequently stated that Gulzar was not present and he was assaulted by the applicant. Learned A.G.A. and learned counsel for the complainant submitted that the applicant is named in the F.I.R. The incident took place on 1.7.2009 at 5.:45 p.m. The F.I.R. was lodged on the same day at 7:00 p.m. There was previous enmity between the accused persons and the family of the complainant Nafees Ahmed. All the four accused armed with knives (chhura) went to the house of Khaleel (son of the sister of complainant). The brother of the complainant Anees (deceased) was also there. On the exhortation of Yusuf and Kayum, Yusuf caught hold of Anees and the applicant gave him knife blows. Kayum caught hold of Khaleel and Gulzar gave knife blow to Khaleel. The incident was witnessed by Shafiq Ahmed, Israr Ahmed and Smt. Firoza. Both the injured were taken to the hospital, but Anees died. It was contended that the applicant is a previous convict and has been convicted and sentenced to life imprisonment vide judgment and order dated 3.2.1999 passed by V Additional Sessions Judge, Bijnor in Sessions Trial No.304 of 1993 under Sections 302, 307, 504 I.P.C., P.S. Nazibabad, District Bijnor. It was submitted that in view of the provisions of Section 437 (1) (ii) Cr.P.C., the applicant is not entitled to bail. In reply, learned counsel for the applicant submitted that provisions of Section 437 Cr.P.C. are not applicable to the High Court and Section 439 Cr.P.C. does not provide any such restriction. It was contended that the applicant received injuries by assault made by the witnesses, injured and the deceased and the applicant had a right of private defence to protect himself.
(3.) APPLICANT is named in the F.I.R., which is prompt. All the witnesses have categorically stated that the applicant gave knife blows to the deceased causing his death. The injury report relied on by the applicant shows nine injuries including seven small abrasions and two complaints of pain. There is nothing on record to show that any cross F.I.R. was lodged or the alleged injuries sustained by the applicant were caused to him during course of incident. It has not been explained why the applicant could not get himself medically examined on 1.7.2009. The injuries appear to be superficial and the prosecution is not bound to explain the same. Having considered all the facts and circumstances of the case, submissions advanced by learned counsel for the parties and the previous conviction of the applicant awarding life imprisonment to him, I do not find it to be a fit case for bail. Application for bail is rejected.;