Ishtiyaq vs State of U.P

Counter affidavit filed today is taken on record.

Appellants Ishtiyaq, Israr and Kaluwa convicted and sentenced for the offences under Sections 302 read with Section 34 IPC vide judgment and order dated 30th November, 2010 passed by the Addl. Sessions Judge, Court No. 5, Ghaziabad in S.T. No. 905 of 1996, seek their release on bail.

Heard learned Counsel for the Appellants, learned AGA for the State and perused the impugned judgment and trial court''s record.

Learned Counsel for the Appellants would submit that out of three eye-witnesses, P.W.-2 and P.W.-3 have turned hostile and have not supported the prosecution case. The only eye-witness Abid Ali (P.W.-1) in his cross examination admitted that he did not see Ishtiyaq and Israr firing at the deceased but stated that he saw the Appellant Kaluwa firing in the air. It was further submitted that there was no sufficient motive for the crime and the motive alleged was very inconsequential and could not have been the basis for causing the death of the deceased.

Learned AGA submitted that in the case of direct evidence absence of motive is not important. It is a broad day light murder and the statement of a single witness is sufficient for conviction of the Appellants.

Though Abid Ali (P.W.-1) in his examination-in-chief supported the prosecution case but it was specifically stated in cross examination that he saw only Kaluwa firing in the air. He did not see any of the Appellants firing at the deceased. The other eye-witnesses have also not supported the prosecution case. The incident is of the year 1992 and is about 18 years old. The Appellants were on bail during trial.

Considering all the facts and circumstances of the case and without expressing any opinion on the merits of the case, we find it to be a fit case for bail.

Let the Appellants Ishtiyaq, Israr and Kaluwa be released on bail on furnishing their personal bond and two sureties each in the like amount to the satisfaction of court concerned subject to deposit of fine.