- (1.) HEARD Sri Sudeep Harkauli, learned counsel for the appellant Shiv Kumar, learned A.G.A. for the State of U.P. and Sri Ajay Kumar Pandey, learned counsel for the complainant.
(2.) THIS is second bail application moved on behalf of the appellant Shiv Kumar with a prayer that he may be released on bail during pendency of his appeal. The prayer for bail in the first bail applicant has been rejected by the Division Bench comprising Hon'ble Ravindra Singh and Hon'ble Anil Kumar Agarwal, JJ. on 21.11.2013.
(3.) THE second bail application has been nominated by Hon'ble the Chief Justice to the bench presided over by Hon'ble Ravindra Singh, J. vide order dated 30.10.2014. It is submitted by learned counsel for the appellant that the conviction of the appellant is mainly based on the testimony of the P.W. 1 Dev Dutt and P.W. 2 Munna Lal who claimed themselves to be eye witnesses of the alleged incident. Both the witnesses are highly interested and partisan because P.W. 1 Dev Dutt is real brother of the deceased and P.W. 2 Munnal Lal is father of the deceased. Their presence at the place of the incident was highly doubtful. They did not make any effort to save the life of the deceased whereas the allegation against the appellant Shiv Kumar is that he was having the knife, the weapon knife was not so dangerous weapon as of fire arm. The independent witnesses namely Ashok son of Shri Kishan has not been produced before the trial court deliberately because he was not ready to support the concocted prosecution story or he was not ready to tell a lie, the FIR was ante timed because the scribe of the FIR namely Shiv Kumar has been examined as D.W. 3. He deposed before the trial court that he scribed the report on dictation of a person wearing the police uniform at about 10.15 O'clock whereas according to the prosecution version the FIR was lodged on 25.2.2004 at 9.10 A.M. According to the police control room the information was given by the police that offence was committed by some unknown person. The prosecution story is not corroborated by the medical evidence because according to the deposition made by the witnesses, the knife injury was caused on the stomach of the deceased whereas none of the injury was on the stomach. It is further submitted that according to the FIR and deposition of P.W. 1 and 2 the deceased was caught hold by the co -accused Dinesh and the injuries were caused by the appellant Shiv Kumar by using the knife blows, thereafter the deceased tried to release from their clutches, then Dinesh also used the knife blows. The co -accused Dinesh who also actively participated according to the prosecution version has been released on bail by this court on 21.11.2013 but by the same order the prayer for bail of the appellant Shiv Kumar has been refused. He is also entitle to get the benefit of the parity.;