Khanjoo vs State of U.P.

Heard learned Counsel for the appellant and learned Additional Government Advocate at some length on the point of bail in this pending appeal.

Appellant Khanjoo son of Sri Khilli alias Leela has preferred this appeal against judgment and order dated 26.09.2998 passed by Additional Sessions Judge/Fast Track Court No. 2 Hardoi in Sessions Trial No. 351 of 2006 convicting the appellant u/s 302/34 IPC and Section 307/34 IPC and sentencing him to the maximum term of life term with fine.

We have gone through the judgment of the learned trial Court as well as the statements of witnesses recorded during trial.

F.I.R in the present case was lodged by complainant Radhey Shyam Prajapati (PW-1) mentioning therein that on 13.03.2006 at 08.00 pm while his brother Mahenge along with one Rajpal was going on a motorcycle, they were attacked by the accused persons who were armed with country made pistol. On account of gunfire having been made by co-accused Atte Singh, his brother Mahenge as well as Raj Pal received firearm injuries. Both the injured were rushed to the hospital but Mahenge succumbed to the gun shot injuries received by him in the way.

The F.I.R of the incident was lodged on the same day, i.e. 13.03.2006 at 11.10 pm at the police station. The distance of the police station from the spot was 12 kilometers.

The prosecution in support of its case, apart from examining the formal witnesses, has examined informant Radhey Shyam Prajapati (PW-1) and Rajpal (PW-2), who is said to have also received injuries in the incident.

PW-2 Raj Pal is the star witness of the prosecution. In his cross-examination this witness has specifically stated that he along with deceased Mahenge was going on a motorcycle, which was being driven by deceased Mahenge, and as soon as the headlight of the motorcycle fell upon appellant Khanjoo and co-accused Atte, they fired upon them. Both the the accused were concealing their faces. This witness further stated that co-accused Atte Singh fired upon them due to which he (Raj Pal) received injury on his right hand while deceased Mahenge received injury on his abdomen. Deceased fell down on receiving firearm injury and was taken to the hospital, but died while on the way to the hospital. This witness in his cross-examination has stated that the accused persons were concealing their faces when fire was made by them. He stated, "MULJIM CHEHRE PAR ANGAUCHA SE DHATHA BANDHE HUE THE" The F.I.R of the incident was initially lodged under Sections 308/304 IPC. Complainant Radhey Shyam Prajapati had mentioned in the F.I.R that Atte Singh, the co-accused, had fired upon his brother Mehenge who died due to the gunshot injury received by him.

Argument of the learned Counsel for the appellant is that Raj Pal (PW-2) was not able to recognize the appellant since according to his own saying, the accused had concealed their faces with an AUNGAUCHA (a piece of cloth). He further submitted that it is most surprising that from the very beginning, the prosecution has set up a case that Raj Pal (PW-2) had also sustained firearm injury, but there is no injury report on record of this injured to prove that he had also received injury in the incident. It is further submitted that the accused appellant was on bail during the trial and he had not misused the liberty of bail granted to him.

Taking into consideration the overall aspect of the matter as well as the statement of witnesses on record, we are of the view that the appellant deserves to be enlarged on bail.

Let appellant Khanjoo, convict of above mentioned Sessions Trial be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of learned Chief Judicial Magistrate Hardoi.

Realization of half of fine is stayed. The remaining half of fine shall be deposited by the appellant within one month from the date of his release on bail. The Chief Judicial Magistrate shall transmit to this Court photo stat copies of the bail bonds and sureties to be preserved on the record of the appeal.