KUNDAN SINGH, J. - (1.) ALL the above noted appeals have been filed against the judgment and order dated 11-8-1995 of the Sessions Judge, Saharanpur, in respect of an incident which took place on 30-9-1989 at about 8.00 a.m. on a road in Mohalla Pathanpura, Police Station Deoband, district Saharanpur in which four persons lost their lives and two persons sustained injuries. All the appeals have been connected by order dated 11-10-1995, Muufait appellant has been granted bail by this Court on 21-8-1995 while Sultan and Ismail have been refused the facility of bail by Hon'ble R. N. Ray, J. on 22-3-1995. Hon'ble G. S. N. Tripathi, J., released the matter and directed the papers to be laid before the Hon'ble the Chief Justice for nominating another Judge for disposing of these matters and this is how these appeals have come up before me in pursuance of the order, dated 15-2-1996.
(2.) SRI A. D. Giri, learned senior counsel appearing for the appellants, at the out set submitted that the Supreme Court has laid down principles in a very recent case for grant of bail to the accused who are behind the bars in the case of TAD A where the detenus except of Bombay blast case and hard core criminals are in Jail for more than 5 years and their trial is not likely to be concluded within six months can be released on bail. The appellants in this case have been in Jail for more than six years and now the appeals of the year 1979 to 1980 are being taken up for hearing. Seeing the huge pendency of criminal appeals, paucity of Judges and the rate of disposal of the appeals par year, these appeals are not likely to come up for hearing for next 20 years. Munfait Ali, Yasin and Ismail are old persons of 72, 75 and 72 years, respectively. Yasin who was 70 years old has died in Jail. It is difficult to say which of the accused-appellants will survive by the time these appeals come up for final disposal. Besides above submissions, the contention of the learned counsel for the appellants was four-fold, firstly, there was serious dispute about the time of incident and authenticity of the FIR. According to him, neither the incident took place at the time alleged by the prosecution nor the FIR was lodged at the time when it is said to have been lodged. If the incident had taken place at 8.00 a.m., in no circumstance the FIR could have been lodged at 8.45 a.m. inasmuch as Mahmood Khan (PW 1) took his son in an injured condition on a rickshaw to Hospital, being at a distance of 28 kilo­metres from the place of incident but his son died when he was being examined by the Doctor at 8.30a.m. Then he went to market where he got the FIR typed oat and then lodged it at the police station at 8.45 a.m. on the same day, particularly when another son named Haud Khan had already died on the spot. It is also doubtful whether PW 1 had taken his son to Hospital. It is also doubtful whether the case was registered as Crime No. 514 or 525. Even according to the prosecution, the complainant party had gone to take fodder and to work in their fields. In the incident four persons last their lives, it is surprising enough that large intestines of all the four deceased persons were found full of faecal matter and their stomach were found empty, even none of them took food (sic). Dr. G. P. Tanoli (PW 5) stated that the deceased had not (sic) before their death between 3.00 and 4.00 a.m. on 29/30-9-1989 was more probable. The dead bodies were sent to mortuary for post-mortem examination in the noon of 30-9-1989 but detained at police lines Saharanpur from 6.00 p.m. till next day only for the preparation of the FIR and other papers which were not actually ready by that time, when the FIR and other papers were prepared after cooking up a false case and they were sent to police then the deadbodies alongwith a copy of the FIR and other papers were sent to mortuary next day. The papers of the case diary were sent to the great delay by the Investigating Officer to higher officials for which the Investigating Officer was warned by the Circle Officer. As such the incident does not appear to have taken place at the time alleged by the prosecution nor the FIR was lodged at the time as alleged by the prosecution and hence no sanctity can be attached to the FIR.
(3.) SECONDLY , the presence of witnesses at the scene of occurrence is highly doubtful inasmuch as Mahmood Khan (PW 1) is said to have taken his son to Hospital for medical examination but Mahmood Khan's name does not figure in the memo sent by the Hospital to the police station regarding the person who brought Saud Khan to Hospital. It is also Alleged that Mahmood Khan took his son from the place of occurrence to Hospital on a rickshaw but his clothes were not stained with blood of Saud Khan, which was oozing from his injuries. Had he been present at the scene of occurrence, he must not have escaped unhurt from the six fire-arms and six palkalees of the assailants, particularly when Mahmood Khan and his son Badood Khan were main target of the accused but they did not suffer even a single scratch in the incident. Part of the testimony of PW 1 is false regarding the fact that Ilyas PW 3 was not his surety in the murder case of Mussaraf and his father married once in Nanauta and Rashida came to his house with step mother and that the place of occurrence was a metalled road of Kharanja. It is also doubtful as to whether Mashooq Ali (PW 2) sustained any injury in the incident and he was medically examined at the Nursing Home or District Hospital Muzaffarnagar or at Saharanpur.;